SUBCHAPTER U—AIR POLLUTION CONTROLSPartPage1027Fees for engine, vehicle, and equipment compliance programs41033Control of emissions from locomotives111039Control of emissions from new and in-use nonroad compression-ignition engines901042Control of emissions from new and in-use marine compression-ignition engines and vessels1671043Control of NOX, SOX, and PM emissions from engines and vessels subject to the MARPOL protocol2521045Control of emissions from spark-ignition propulsion marine engines and vessels2621048Control of emissions from new, large nonroad spark-ignition engines3271051Control of emissions from recreational engines and vehicles3861054Control of emissions from new, small nonroad spark-ignition engines and equipment4511060Control of evaporative emissions from new and in-use nonroad and stationary equipment5201065Engine-testing procedures5591068General compliance provisions for engine programs7551074Preemption of state standards and procedures for waiver of federal preemption for nonroad engines and nonroad vehicles817SUBCHAPTER U—AIR POLLUTION CONTROLSPt. 1027PART 1027—FEES FOR ENGINE, VEHICLE, AND EQUIPMENT COMPLIANCE PROGRAMSSec.1027.101To whom do these requirements apply?1027.105How much are the fees?1027.110What special provisions apply for certification related to motor vehicles?1027.115What special provisions apply for certification related to nonroad and stationary engines?1027.120Can I qualify for reduced fees?1027.125Can I get a refund?1027.130How do I make a fee payment?1027.135What provisions apply to a deficient filing?1027.140What reporting and recordkeeping requirements apply under this part?1027.150 What definitions apply to this part?1027.155What abbreviations apply to this subpart?Authority:

42 U.S.C. 7401-7671q.

Source:

73 FR 59184, Oct. 8, 2008, unless otherwise noted.

§ 1027.101To whom do these requirements apply?

(a) This part prescribes fees manufacturers must pay for activities related to EPA's engine, vehicle, and equipment compliance program (EVECP). This includes activities related to approving certificates of conformity and performing tests and taking other steps to verify compliance with emission standards. You must pay fees as described in this part if you are a manufacturer of any of the following products:

(b) This part applies to applications for certification that we receive on or after December 8, 2008. Earlier applications are subject to the provisions of 40 CFR part 85, subpart Y, as that provision read before December 8, 2008.

(c) Nothing in this part limits our authority to conduct testing or to require you to conduct testing as provided in the Act, including our authority to require you to conduct in-use testing under section 208 of the Act (42 U.S.C. 7542).

(d) Paragraph (a) of this section identifies the parts of the CFR that define emission standards and other requirements for particular types of engines, vehicles, and fuel-system components. This part 1027 refers to each of these other parts generically as the “standard-setting part.” For example, 40 CFR part 1051 is always the standard-setting part for recreational vehicles. For some nonroad engines, we allow for certification related to evaporative emissions separate from exhaust emissions. In this case, 40 CFR part 1060 is the standard-setting part for the equipment or fuel system components you produce.

(a) Fees are determined based on the date we receive a complete application for certification. Each reference to a year in this subpart refers to the calendar year, unless otherwise specified. Paragraph (b) of this section specifies baseline fees, which applied for certificates received in 2005. For engine and vehicles not yet subject to standards in 2005, these values represent the fees that apply initially based on available information to characterize what the fees would have been in 2005. See paragraph (c) of this section for provisions describing how we calculate fees for future years.

(b) The following baseline fees for each application for certification:

(1) Except as specified in paragraph (b)(2) of this section for Independent Commercial Importers, the following fees apply for motor vehicles and motor vehicle engines:

(c) We will calculate adjusted fees for later years based on changes in the Consumer Price Index and the number of certificates. We will announce adjusted fees for a given year by January 31 of the preceding year.

(1) We will adjust the values specified in paragraph (b) of this section for later years as follows:

(i) Use the fee identified in § 1027.105(b)(3) through 2014 for certification related to evaporative emissions from nonroad and stationary engines when a separate fee applies for certification to evaporative emission standards. Use the following equation starting with 2015:

ER24FE09.003Where:Certificate FeeCY = Fee per certificate for a given year.Op = operating costs are all of EPA's nonlabor costs for each category's compliance program, including any fixed costs associated with EPA's testing laboratory, as described in paragraph (d)(1) of this section.L = the labor costs, to be adjusted by the Consumer Price Index, as described in paragraph (d)(1) of this section.CPICY-2 = the Consumer Price Index for the month of November two years before the applicable calendar year, as described in paragraph (d)(2) of this section.CPI2006 = 201.8. This is based on the October 2006 value of the Consumer Price Index.OH = 1.169. This is based on EPA overhead, which is applied to all costs.cert#MY-2 = the total number of certificates issued for a fee category in the model year two years before the calendar year for the applicable fees as described in paragraph (d)(3) of this section.cert#MY-3 = the total number of certificates issued for a fee category in the model year three years before the calendar year for the applicable fees as described in paragraph (d)(3) of this section.

(ii) Use the following equation for all other certificates for 2006 and later:

ER24FE09.004Where:CPI2002 = 180.9. This is based on the December 2002 value of the Consumer Price Index as described in paragraph (d)(2) of this section.

(2) The fee for any year will remain at the previous year's amount until the value calculated in paragraph (c)(1) of this section differs by at least $50 from the amount specified for the previous year.

(d) Except as specified in § 1027.110(a) for motor vehicles and motor vehicle engines, we will use the following values to determine adjusted fees using the equation in paragraph (c) of this section:

(2) The applicable Consumer Price Index is based on the values published by the Bureau of Labor Statistics for all U.S. cities using the “U.S. city average” area, “all items,” and “not seasonally adjusted” numbers (see ftp://ftp.bls.gov/pub/special.requests/cpi/cpiai.txt). For example, we calculated the 2006 fees using the Consumer Price Index for November 2004, which is 191.0.

(3) Fee categories for counting the number of certificates issued are based on the grouping shown in paragraph (d)(1) of this section.

(a) We will adjust fees for 2006 and later years for light-duty, medium-duty passenger, and complete heavy-duty highway vehicles as follows:

(1) California-only certificates. Calculate adjusted fees for California-only certificates by applying the light-duty, medium-duty passenger, and complete heavy-duty highway vehicle certification Op and L values to the equation in § 1027.105(c). The total number of certificates issued will be the total number of California-only and federal light-duty, medium-duty passenger, and complete heavy-duty highway vehicle certificates issued during the appropriate model years.

(2) Federal certificates. Calculate adjusted fees for federal certificates with the following three steps:

(i) Apply the light-duty, medium-duty passenger, and complete heavy-duty highway vehicle certification Op and L values to the equation in § 1027.105(c) to determine the certification portion of the light-duty fee. The total number of certificates issued will be the total number of California-only and federal light-duty, medium-duty passenger and complete heavy-duty highway vehicle certificates issued during the appropriate model years.

(ii) Apply the light-duty, medium-duty passenger, and complete heavy-duty highway vehicle in-use testing Op and L values to the equation in § 1027.105(c) to determine the in-use testing portion of the fee. The total number of certificates issued will be the total number of federal light-duty, medium-duty passenger, and complete heavy-duty highway vehicle certificates issued during the appropriate model years.

(iii) Add the certification and in-use testing portions determined in paragraphs (a)(2)(i) and (ii) of this section to determine the total light-duty, medium-duty passenger, and complete heavy-duty highway vehicle fee for each federal certificate.

(b) For light-duty vehicles, light-duty trucks, medium-duty passenger vehicles, highway motorcycles, and complete heavy-duty highway vehicles subject to exhaust emission standards, the number of certificates issued as specified in § 1027.105(d)(3) is based only on engine families with respect to exhaust emissions. A separate fee applies for each evaporative family for heavy-duty engines.

(c) If you manufacture a heavy-duty vehicle that another company has certified as an incomplete vehicle such that you exceed the maximum fuel tank size specified by the original manufacturer in the applicable certificate of conformity, you must submit a new application for certification and certification fee for the vehicle.

§ 1027.115What special provisions apply for certification related to nonroad and stationary engines?

(a) For spark-ignition engines above 19 kW that we regulate under 40 CFR part 1048 and for all compression-ignition engines, the applicable fee is based only on engine families with respect to exhaust emissions.

(b) For manufacturers certifying recreational vehicles with respect to both exhaust and evaporative emission standards, fees are determined using one of the following approaches:

(1) If your engine family includes demonstration of compliance with both exhaust and evaporative emission standards, the applicable fee is based on certification related to the combined family. No separate fee applies for certification with respect to evaporative emission standards. These are all considered engine families complying with exhaust emissions for determining the number of certificates for calculating fees for later years.

(2) If you have separate families for demonstrating compliance with exhaust and evaporative emission standards, a separate fee from the appropriate fee category applies for each unique family. Also, the number of certificates issued as specified in § 1027.105(d)(3) is based on a separate count of emission families for exhaust and evaporative emissions for each respective fee category.

(c) For manufacturers certifying other spark-ignition engines or equipment with respect to exhaust and evaporative emission standards, a separate fee from the appropriate fee category applies for each unique family. A single engine or piece of equipment may involve separate emission families and certification fees for exhaust and evaporative emissions. Also, the number of certificates issued as specified in § 1027.105(d)(3) is based on a separate count of emission families for exhaust and evaporative emissions for each respective fee category.

(d) For any certification related to evaporative emissions from engines, equipment, or components not covered by paragraph (a) through (c) of this section, the fee applies for each certified product independent of certification for exhaust emissions, as illustrated in the following examples:

(1) A fuel tank certified to meet permeation and diurnal emission standards would count as a single family for assessing the certification fee and for calculating fee amounts for future years.

(2) If an equipment manufacturer applies for certification to generate or use emission credits for fuel tanks and fuel lines, each affected fuel-tank and fuel-line family would count as a single family for assessing the certification fee and for calculating fee amounts for future years. This fee applies whether or not the equipment manufacturer is applying for certification to demonstrate compliance with another emission standard, such as running losses.

(e) If you certify fuel system components under 40 CFR part 1060, a single fee applies for each emission family even if those components are used with different types of nonroad or stationary engines.

(f) If your application for certification relates to emission standards that apply only in California, you must pay the same fee identified for meeting EPA standards.

(g) For marine compression-ignition engines, if you apply for a Federal certificate and an EIAPP certificate for the same engine family, a single fee applies for the engine family (see 40 CFR parts 94, 1042, and 1043).

(h) If you produce engines for multiple categories in a single engine family, a single fee applies for the engine family. For example, 40 CFR 60.4210 allows you to produce stationary and nonroad compression-ignition engines in a single engine family. If the certification fee for the different types of engines is different, the fee that applies for these engines is based on the emission standards to which you certify the engine family. For example, if you certify marine diesel engines to the standards that apply to land-based nonroad diesel engines under 40 CFR 94.912, the certification fee is based on the rate that applies for land-based nonroad diesel engines.

(a) Eligibility requirements. Both of the following conditions must be met before you are eligible for a reduced fee:

(1) The certificate is to be used for sale of vehicles or engines within the United States.

(2) The full fee for an application for certification for a model year exceeds 1.0% of the aggregate projected retail sales price of all vehicles or engines covered by the certificate.

(b) Initial reduced fee calculation. (1) If the conditions of paragraph (a) of this section are met, the initial fee paid must be $750 or 1.0% of the aggregate projected retail sales price of all the vehicles or engines to be covered by the certificate, whichever is greater.

(2) For vehicles or engines that are converted to operate on an alternative fuel using as the basis for the conversion a vehicle or engine that is covered by an existing certificate of conformity, the cost basis used in this section must be the aggregate projected retail value-added to the vehicle or engine by the conversion rather than the full cost of the vehicle or engine. For this provision to apply, the existing certificate must cover the same sales area and model year as the requested certificate for the converted vehicle or engine.

(3) For remanufacturing systems, the cost basis used in this section must be the aggregate projected retail cost of a complete remanufacture, including the cost of the replacement components, software, and assembly.

(4) For ICI certification applications, the cost basis of this section must be the aggregate projected retail cost of the entire vehicle(s) or engine(s), not just the value added by the conversion. If the vehicles/engines covered by an ICI certificate are not being offered for sale, the manufacturer shall use the fair retail market value of the vehicles/engines as the retail sale price required in this section. For an ICI application for certification, the retail sales price (or fair retail market value) must be based on the applicable National Automobile Dealer's Association (NADA) appraisal guide and/or other evidence of the actual market value.

(5) The aggregate cost used in this section must be based on the total projected sales of all vehicles and engines under a certificate, including vehicles and engines modified under the modification and test option in 40 CFR 85.1509 and 89.609. The projection of the number of vehicles or engines to be covered by the certificate and their projected retail selling price must be based on the latest information available at the time of the fee payment.

(6) You may submit a reduced fee as described in this section if it is accompanied by a calculation of the fee based on the number of vehicles covered and the projected aggregate retail sales price as specified on the fee filing form. Your reduced fee calculation shall be deemed approved unless we determine that the criteria of this section have not been met. We may make such a determination either before or after issuing a certificate of conformity. If we determine that the requirements of this section have not been met, we may deny future reduced fee applications and require submission of the full fee payment until you demonstrate to our satisfaction that your reduced fee submissions are based on accurate data and that final fee payments are made within 45 days of the end of the model year.

(7) If we deny your request for a reduced fee, you must send us the appropriate fee within 30 days after we notify you.

(c) Revision of the number of vehicles or engines covered by the certificate. (1) You must take both of the following steps if the number of vehicles or engines to be produced or imported under the certificate exceeds the number indicated on the certificate (including a certificate under which modification and test vehicles are imported under 40 CFR 85.1509 and 89.609):

(i) Request that we revise the certificate with a number that indicates the new projection of the vehicles or engines to be covered by the certificate. We must issue the revised certificate before the additional number of vehicles or engines may be sold or finally imported into the United States.

(ii) Submit payment of 1.0% of the aggregate projected retail sales price of all the additional vehicles or engines.

(2) You must receive a revised certificate before the sale or final importation of any vehicles or engines, including modification and test vehicles, that are not originally included in the certificate issued under paragraph (b) of this section, or as indicated in a revised certificate issued under paragraph (c)(1) of this section. Such vehicles that are sold or imported before we issue a revised certificate are deemed to be not covered by a certificate of conformity.

(d) Final reduced fee calculation and adjustment. (1) If the initial fee payment is less than the final reduced fee, you must pay the difference between the initial reduced fee and the final reduced fee using the provisions of § 1027.130. Calculate the final reduced fee using the procedures of paragraph (c) of this section but using actual production figures rather than projections and actual retail sales value rather than projected retail sales value.

(2) You must pay the difference between the initial reduced fee and the final reduced fee within 45 days of the end of the model year. The total fees paid for a certificate may not exceed the applicable full fee specified in § 1027.105. We may void the applicable certificate if you fail to make a complete payment within the specified period. We may also refuse to grant reduced fee requests submitted under paragraph (b)(5) of this section.

(3) If the initial fee payment exceeds the final reduced fee, you may request a refund using the procedures of § 1027.125.

(e) Records retention. You are subject to the applicable requirements to maintain records under this chapter. If you fail to maintain required records or provide them to us, we may void the certificate associated with such records. You must also record the basis you used to calculate the projected sales and fair retail market value and the actual sales and retail price for the vehicles and engines covered by each certificate issued under this section. You must keep this information for at least three years after we issue the certificate and provide it to us within 30 days of our request.

§ 1027.125Can I get a refund?

(a) We will refund the total fee imposed under this part if you ask for a refund after failing to get a certificate for any reason.

(b) If your actual sales or the actual retail prices in a given year are less than you projected for calculating a reduced fee under § 1027.120, we will refund the appropriate portion of the fee. We will also refund a portion of the initial payment if it exceeds the final fee for the engines, vehicles, or equipment covered by the certificate application.

(1) You are eligible for a partial refund related only to a certificate used for the sale of engines, vehicles, or equipment under that certificate in the United States.

(2) Include all the following in your request for a partial refund of reduced fee payments:

(i) State that you sold engines, vehicles, or equipment under the applicable certificate in the United States.

(ii) Identify the number of engines, vehicles, or equipment you produced or imported under the certificate, and whether the engines, vehicles, or equipment have been sold.

(iii) Identify the reduced fee that you paid under the applicable certificate.

(iv) Identify the actual retail sales price for the engines, vehicles, or equipment produced or imported under the certificate.

(v) Calculate the final value of the reduced fee using actual production figures and retail prices.

(vi) Calculate the refund amount.

(c) We will approve your request to correct errors in the amount of the fee.

(d) All refunds must be applied for within six months after the end of the model year.

(e) Send refund and correction requests to the Fee Program Specialist, U.S. Environmental Protection Agency, Vehicle Programs and Compliance Division, 2000 Traverwood Dr., Ann Arbor, MI 48105, online at www.Pay.gov, or as specified in guidance by the Administrator.

(f) You may request to have refund amounts applied to the amount due on another application for certification.

§ 1027.130How do I make a fee payment?

(a) Pay fees to the order of the Environmental Protection Agency in U.S. dollars using any of the following methods: money order, bank draft, certified check, corporate check, electronic funds transfer, any method available for payment online at www.Pay.gov., or as specified in EPA guidance.

(b) Send a completed fee filing form to the address designated on the form for each fee payment or electronically at www.Pay.gov., or as provided in EPA guidance. These forms are available on the Internet at http://www.epa.gov/otaq/guidance.htm.

(c) You must pay the fee amount due before we will start to process an application for certification.

(d) If we deny a reduced fee, you must pay the proper fee within 30 days after we notify you of our decision.

§ 1027.135What provisions apply to a deficient filing?

(a) Any filing under this part is deficient if it is not accompanied by a completed fee filing form and full payment of the appropriate fee.

(b) A deficient filing will be rejected unless the completed form and full payment are submitted within a time limit we specify. We will not process an application for certification if the associated filing is deficient.

§ 1027.140What reporting and recordkeeping requirements apply under this part?

Under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.), the Office of Management and Budget approves the reporting and recordkeeping specified in the applicable regulations. The following items illustrate the kind of reporting and recordkeeping we require for engines, vehicles, and equipment regulated under this part:

Manufacturer has the meaning given in section 216(1) of the Act. In general, this term includes any person who manufactures an engine, vehicle, vessel, or piece of equipment for sale in the United States or otherwise introduces a new engine, vehicle, vessel, or piece of equipment into commerce in the United States. This includes importers who import such products for resale, but not dealers.

Total number of certificates issued means the number of certificates for which fees have been paid. This term is not intended to represent multiple certificates that are issued within a single family or test group.

Void has the meaning given in 40 CFR 1068.30.

We (us, our) means the Administrator of the Environmental Protection Agency and any authorized representatives.

The regulations in this part 1033 apply for all new locomotives and all locomotives containing a new locomotive engine, except as provided in § 1033.5.

(a) Standards begin to apply each time a locomotive or locomotive engine is originally manufactured or otherwise becomes new (defined in § 1033.901). The requirements of this part continue to apply as specified after locomotives cease to be new.

(b) Standards apply to the locomotive. However, in certain cases, the manufacturer/remanufacturer is allowed to test a locomotive engine instead of a complete locomotive, such as for certification. Also, you are not required to complete assembly of a locomotive to obtain a certificate of conformity for it, provided you meet the definition of “manufacturer” or “remanufacturer” (as applicable) in § 1033.901. For example, an engine manufacturer may obtain a certificate for locomotives which it does not manufacture, if the locomotives use its engines.

(c) Standards apply based on the year in which the locomotive was originally manufactured. The date of original manufacture is generally the date on which assembly is completed for the first time. For example, all locomotives originally manufactured in calendar years 2002, 2003, and 2004 are subject to the Tier 1 emission standards for their entire service lives.

(d) The following provisions apply when there are multiple persons meeting the definition of manufacturer or remanufacturer in § 1033.901:

(1) Each person meeting the definition of manufacturer must comply with the requirements of this part that apply to manufacturers; and each person meeting the definition of remanufacturer must comply with the requirements of this part that apply to remanufacturers. However, if one person complies with a specific requirement for a given locomotive, then all manufacturers/remanufacturers are deemed to have complied with that specific requirement.

(2) We will apply the requirements of subparts C, D, and E of this part to the manufacturer/remanufacturer that obtains the certificate of conformity for the locomotive. Other manufacturers and remanufacturers are required to comply with the requirements of subparts C, D, and E of this part only when notified by us. In our notification, we will specify a reasonable time period in which you need to comply with the requirements identified in the notice. See § 1033.601 for the applicability of 40 CFR part 1068 to these other manufacturers and remanufacturers.

(3) For example, we may require a railroad that installs certified kits but does not hold the certificate to perform production line auditing of the locomotives that it remanufactures. However, if we did, we would allow the railroad a reasonable amount of time to develop the ability to perform such auditing.

(e) The provisions of this part apply as specified for locomotives manufactured or remanufactured on or after July 7, 2008. See § 1033.102 to determine whether the standards of this part or the standards of 40 CFR part 92 apply for model years 2008 through 2012. For example, for a locomotive that was originally manufactured in 2007 and remanufactured on April 10, 2014, the provisions of this part begin to apply on April 10, 2014.

§ 1033.5Exemptions and exclusions.

(a) Subpart G of this part exempts certain locomotives from the standards of this part.

(b) The definition of “locomotive” in § 1033.901 excludes certain vehicles. In general, the engines used in such excluded equipment are subject to standards under other regulatory parts. For example, see 40 CFR part 1039 for requirements that apply to diesel engines used in equipment excluded from the definition of “locomotive” in § 1033.901. The following locomotives are also excluded from the provisions of this part 1033:

(1) Historic locomotives powered by steam engines. For a locomotive that was originally manufactured after January 1, 1973 to be excluded under this paragraph (b)(1), it may not use any internal combustion engines and must be used only for historical purposes such as at a museum or similar public attraction.

(2) Locomotives powered only by an external source of electricity.

(c) The requirements and prohibitions of this part apply only for locomotives that have become “new” (as defined in § 1033.901) on or after July 7, 2008.

(d) The provisions of this part do not apply for any auxiliary engine that only provides hotel power. In general, these engines are subject to the provisions of 40 CFR part 1039. However, depending on the engine cycle, model year and power rating, the engines may be subject to other regulatory parts instead.

(e) Manufacturers and owners of locomotives that operate only on non-standard gauge rails may ask us to exclude such locomotives from this part by excluding them from the definition of “locomotive”.

§ 1033.10Organization of this part.

The regulations in this part 1033 contain provisions that affect locomotive manufacturers, remanufacturers, and others. However, the requirements of this part are generally addressed to the locomotive manufacturer/remanufacturer. The term “you” generally means the manufacturer/remanufacturer, as defined in § 1033.901. This part 1033 is divided into the following subparts:

(a) Subpart A of this part defines the applicability of part 1033 and gives an overview of regulatory requirements.

(b) Subpart B of this part describes the emission standards and other requirements that must be met to certify locomotives under this part. Note that § 1033.150 discusses certain interim requirements and compliance provisions that apply only for a limited time.

(c) Subpart C of this part describes how to apply for a certificate of conformity.

(d) Subpart D of this part describes general provisions for testing and auditing production locomotives.

(e) Subpart E of this part describes general provisions for testing in-use locomotives.

(f) Subpart F of this part and 40 CFR part 1065 describe how to test locomotives and engines.

(g) Subpart G of this part and 40 CFR part 1068 describe requirements, prohibitions, exemptions, and other provisions that apply to locomotive manufacturer/remanufacturers, owners, operators, and all others.

(h) Subpart H of this part describes how you may generate and use emission credits to certify your locomotives.

(i) Subpart I of this part describes provisions for locomotive owners and operators.

(j) Subpart J of this part contains definitions and other reference information.

§ 1033.15Other regulation parts that apply for locomotives.

(a) Part 1065 of this chapter describes procedures and equipment specifications for testing engines to measure exhaust emissions. Subpart F of this part 1033 describes how to apply the provisions of part 1065 of this chapter to test locomotives to determine whether they meet the exhaust emission standards in this part.

(b) The requirements and prohibitions of part 1068 of this chapter apply to everyone, including anyone who manufactures, remanufactures, imports, maintains, owns, or operates any of the locomotives subject to this part 1033. See § 1033.601 to determine how to apply the part 1068 regulations for locomotives. Part 1068 of this chapter describes general provisions, including the following areas:

(1) Prohibited acts and penalties for locomotive manufacturer/remanufacturers and others.

(a) This part includes various requirements to record data or other information. Refer to § 1033.925 and 40 CFR 1068.25 regarding recordkeeping requirements. Unless we specify otherwise, store these records in any format and on any media and keep them readily available for one year after you send an associated application for certification, or one year after you generate the data if they do not support an application for certification. You must promptly send us organized, written records in English if we ask for them. We may review them at any time.

(b) The regulations in § 1033.255 and 40 CFR 1068.101 describe your obligation to report truthful and complete information and the consequences of failing to meet this obligation. This includes information not related to certification.

(c) Send all reports and requests for approval to the Designated Compliance Officer (see § 1033.901).

(d) Any written information we require you to send to or receive from another company is deemed to be a required record under this section. Such records are also deemed to be submissions to EPA. We may require you to send us these records whether or not you are a certificate holder.

See §§ 1033.102 and 1033.150 to determine how the emission standards of this section apply before 2023.

(a) Emission standards for line-haul locomotives. Exhaust emissions from your new locomotives may not exceed the applicable emission standards in Table 1 to this section during the useful life of the locomotive. (Note: § 1033.901 defines locomotives to be “new” when originally manufactured and when remanufactured.) Measure emissions using the applicable test procedures described in subpart F of this part.

Table 1 to § 1033.101—Line-Haul Locomotive Emission StandardsYear of original manufactureTier of standardsStandards (g/bhp-hr)NOXPMHCCO1973-1992 aTier 0 b8.00.221.005.01993 a-2004Tier 1 b7.40.220.552.22005-2011Tier 2 b5.5e 0.100.301.52012-2014Tier 3 c5.50.100.301.52015 or laterTier 4 d1.30.030.141.5a Locomotive models that were originally manufactured in model years 1993 through 2001, but that were not originally equipped with a separate coolant system for intake air are subject to the Tier 0 rather than the Tier 1 standards.b Line-haul locomotives subject to the Tier 0 through Tier 2 emission standards must also meet switch standards of the same tier.c Tier 3 line-haul locomotives must also meet Tier 2 switch standards.d Manufacturers may elect to meet a combined NOX+HC standard of 1.4 g/bhp-hr instead of the otherwise applicable Tier 4 NOX and HC standards, as described in paragraph (j) of this section.e The PM standard for newly remanufactured Tier 2 line-haul locomotives is 0.20 g/bhp-hr until January 1, 2013, except as specified in § 1033.150(a).

(b) Emission standards for switch locomotives. Exhaust emissions from your new locomotives may not exceed the applicable emission standards in Table 2 to this section during the useful life of the locomotive. (Note: § 1033.901 defines locomotives to be “new” when originally manufactured and when remanufactured.) Measure emissions using the applicable test procedures described in subpart F of this part.

Table 2 to § 1033.101—Switch Locomotive Emission StandardsYear of original manufactureTier of standardsStandards (g/bhp-hr)NOXPMHCCO1973-2001Tier 011.80.262.108.02002-2004Tier 1 a11.00.261.202.52005-2010Tier 2 a8.1b 0.130.602.42011-2014Tier 35.00.100.602.42015 or laterTier 4c 1.30.03c 0.142.4a Switch locomotives subject to the Tier 1 through Tier 2 emission standards must also meet line-haul standards of the same tier.b The PM standard for new Tier 2 switch locomotives is 0.24 g/bhp-hr until January 1, 2013.c Manufacturers may elect to meet a combined NOX+HC standard of 1.4 g/bhp-hr instead of the otherwise applicable Tier 4 NOX and HC standards, as described in paragraph (j) of this section.

(c) Smoke standards. The smoke opacity standards specified in Table 3 to this section apply only for locomotives certified to one or more PM standards or FELs greater than 0.05 g/bhp-hr. Smoke emissions, when measured in accordance with the provisions of Subpart F of this part, shall not exceed these standards.

(d) Averaging, banking, and trading. You may generate or use emission credits under the averaging, banking, and trading (ABT) program as described in subpart H of this part to comply with the NOX and/or PM standards of this part. You may also use ABT to comply with the Tier 4 HC standards of this part as described in paragraph (j) of this section. Generating or using emission credits requires that you specify a family emission limit (FEL) for each pollutant you include in the ABT program for each engine family. These FELs serve as the emission standards for the engine family with respect to all required testing instead of the standards specified in paragraphs (a) and (b) of this section. FELs may not be higher than the following limits:

(1) FELs for Tier 0 and Tier 1 locomotives originally manufactured before 2002 may have any value.

(2) FELs for Tier 1 locomotives originally manufactured 2002 through 2004 may not exceed 9.5 g/bhp-hr for NOX emissions or 0.60 g/bhp-hr for PM emissions measured over the line-haul duty cycle. FELs for these locomotives may not exceed 14.4 g/bhp-hr for NOX emissions or 0.72 g/bhp-hr for PM emissions measured over the switch duty cycle.

(3) FELs for Tier 2 and Tier 3 locomotives may not exceed the Tier 1 standards of this section.

(4) FELs for Tier 4 locomotives may not exceed the Tier 3 standards of this section.

(e) Notch standards. (1) Exhaust emissions from locomotives may not exceed the notch standards specified in paragraph (e)(2) of this section, except as allowed in paragraph (e)(3) of this section, when measured using any test procedures under any test conditions.

(2) Except as specified in paragraph (e)(5) of this section, calculate the applicable notch standards for each pollutant for each notch from the certified notch emission rate as follows:

Notch standard = (Ei) × (1.1 + (1—ELHi/std))Where:Ei = The deteriorated brake-specific emission rate (for pollutant i) for the notch (i.e., the brake-specific emission rate calculated under subpart F of this part, adjusted by the deterioration factor in the application for certification); where i is NOX, HC, CO or PM.ELHi = The deteriorated line-haul duty-cycle weighted brake-specific emission rate for pollutant i, as reported in the application for certification, except as specified in paragraph (e)(6) of this section.std = The applicable line-haul duty-cycle standard/FEL, except as specified in paragraph (e)(6) of this section.

(3) Exhaust emissions that exceed the notch standards specified in paragraph (e)(2) of this section are allowed only if one of the following is true:

(i) The same emission controls are applied during the test conditions causing the noncompliance as were applied during certification test conditions (and to the same degree).

(ii) The exceedance result from a design feature that was described (including its effect on emissions) in the approved application for certification, and is:

(A) Necessary for safety;

(B) Addresses infrequent regeneration of an aftertreatment device; or

(C) Otherwise allowed by this part.

(4) Since you are only required to test your locomotive at the highest emitting dynamic brake point, the notch caps that you calculate for the dynamic brake point that you test also apply for other dynamic brake points.

(5) No PM notch caps apply for locomotives certified to a PM standard or FEL of 0.05 g/bhp-hr or lower.

(6) For switch locomotives that are not subject to line-haul standards, ELHi equals the deteriorated switch duty-cycle weighted brake-specific emission rate for pollutant i and std is the applicable switch cycle standard/FEL.

(f) Fuels. The exhaust emission standards in this section apply for locomotives using the fuel type on which the locomotives in the engine family are designed to operate.

(1) You must meet the numerical emission standards for HC in this section based on the following types of hydrocarbon emissions for locomotives powered by the following fuels:

(iii) Diesel-fueled and other locomotives: THC emissions for Tier 3 and earlier locomotives and NMHC for Tier 4. Note that manufacturers/remanufacturers may choose to not measure NMHC and assume that NMHC is equal to THC multiplied by 0.98 for diesel-fueled locomotives.

(2) You must certify your diesel-fueled locomotives to use the applicable grades of diesel fuel as follows:

(i) Certify your Tier 4 and later diesel-fueled locomotives for operation with only Ultra Low Sulfur Diesel (ULSD) fuel. Use ULSD as the test fuel for these locomotives.

(ii) Certify your Tier 3 and earlier diesel-fueled locomotives for operation with only ULSD fuel if they include sulfur-sensitive technology and you demonstrate compliance using a ULSD test fuel.

(iii) Certify your Tier 3 and earlier diesel-fueled locomotives for operation with either ULSD fuel or Low Sulfur Diesel (LSD) fuel if they do not include sulfur-sensitive technology or if you demonstrate compliance using an LSD test fuel (including commercial LSD fuel).

(iv) For Tier 1 and earlier diesel-fueled locomotives, if you demonstrate compliance using a ULSD test fuel, you must adjust the measured PM emissions upward by 0.01 g/bhp-hr to make them equivalent to tests with LSD. We will not apply this adjustment for our testing.

(g) Useful life. The emission standards and requirements in this subpart apply to the emissions from new locomotives for their useful life. The useful life is generally specified as MW-hrs and years, and ends when either of the values (MW-hrs or years) is exceeded or the locomotive is remanufactured.

(1) The minimum useful life in terms of MW-hrs is equal to the product of the rated horsepower multiplied by 7.50. The minimum useful life in terms of years is ten years. For locomotives originally manufactured before January 1, 2000 and not equipped with MW-hr meters, the minimum useful life is equal to 750,000 miles or ten years, whichever is reached first. See § 1033.140 for provisions related to rated power.

(2) You must specify a longer useful life if the locomotive or locomotive engine is designed to last longer than the applicable minimum useful life. Recommending a time to remanufacture that is longer than the minimum useful life is one indicator of a longer design life.

(3) Manufacturers/remanufacturers of locomotives with non-locomotive-specific engines (as defined in § 1033.901) may ask us (before certification) to allow a shorter useful life for an engine family containing only non-locomotive-specific engines. We may approve a shorter useful life, in MW-hrs of locomotive operation but not in years, if we determine that these locomotives will rarely operate longer than the shorter useful life. If engines identical to those in the engine family have already been produced and are in use, your demonstration must include documentation from such in-use engines. In other cases, your demonstration must include an engineering analysis of information equivalent to such in-use data, such as data from research engines or similar engine models that are already in production. Your demonstration must also include any overhaul interval that you recommend, any mechanical warranty that you offer for the engine or its components, and any relevant customer design specifications. Your demonstration may include any other relevant information.

(4) Remanufacturers of locomotive or locomotive engine configurations that have been previously certified under paragraph (g)(3) of this section to a useful life that is shorter than the value specified in paragraph (g)(1) of this section may certify to that same shorter useful life value without request.

(5) In unusual circumstances, you may ask us to allow you to certify some locomotives in your engine family to a partial useful life. This allowance is limited to cases in which some or all of the locomotive's power assemblies have been operated previously such that the locomotive will need to be remanufactured prior to the end of the otherwise applicable useful life. Unless we specify otherwise, define the partial useful life based on the total MW-hrs since the last remanufacture to be consistent with other locomotives in the family. For example, this may apply for a previously uncertified locomotive that becomes “new” when it is imported, but that was remanufactured two years earlier (representing 25 percent of the normal useful life period). If such a locomotive could be brought into compliance with the applicable standards without being remanufactured, you may ask to include it in your engine family for the remaining 75 percent of its useful life period.

(h) Applicability for testing. The emission standards in this subpart apply to all testing, including certification testing, production-line testing, and in-use testing.

(i) Alternate CO standards. Manufacturers/remanufacturers may certify Tier 0, Tier 1, or Tier 2 locomotives to an alternate CO emission standard of 10.0 g/bhp-hr instead of the otherwise applicable CO standard if they also certify those locomotives to alternate PM standards less than or equal to one-half of the otherwise applicable PM standard. For example, a manufacturer certifying Tier 1 locomotives to a 0.11 g/bhp-hr PM standard may certify those locomotives to the alternate CO standard of 10.0 g/bhp-hr.

(j) Alternate NOX+HC standards for Tier 4. Manufacturers/remanufacturers may use credits accumulated through the ABT program to certify Tier 4 locomotives to an alternate NOX+HC emission standard of 1.4 g/bhp-hr (instead of the otherwise applicable NOX and NMHC standards). You may use NOX credits to show compliance with this standard by certifying your family to a NOX+HC FEL. Calculate the NOX credits needed as specified in subpart H of this part using the NOX+HC emission standard and FEL in the calculation instead of the otherwise applicable NOX standard and FEL. You may not generate credits relative to the alternate standard or certify to the standard without using credits.

(k) Upgrading. Upgraded locomotives that were originally manufactured prior to January 1, 1973 are subject to the Tier 0 standards. (See the definition of upgrade in § 1033.901.)

(l) Other optional standard provisions. Locomotives may be certified to a higher tier of standards than would otherwise be required. Tier 0 switch locomotives may be certified to both the line-haul and switch cycle standards. In both cases, once the locomotives become subject to the additional standards, they remain subject to those standards for the remainder of their service lives.

(a) Except as specified in § 1033.150(a), the Tier 0 and Tier 1 standards of § 1033.101 apply for new locomotives beginning January 1, 2010, except as specified in § 1033.150(a). The Tier 0 and Tier 1 standards of 40 CFR part 92 apply for earlier model years.

(b) Except as specified in § 1033.150(a), the Tier 2 standards of § 1033.101 apply for new locomotives beginning January 1, 2013. The Tier 2 standards of 40 CFR part 92 apply for earlier model years.

(c) The Tier 3 and Tier 4 standards of § 1033.101 apply for the model years specified in that section.

§ 1033.110Emission diagnostics—general requirements.

The provisions of this section apply if you equip your locomotives with a diagnostic system that will detect significant malfunctions in their emission-control systems and you choose to base your emission-related maintenance instructions on such diagnostics. See § 1033.420 for information about how to select and maintain diagnostic-equipped locomotives for in-use testing. Notify the owner/operator that the presence of this diagnostic system affects their maintenance obligations under § 1033.815. Except as specified in § 1033.112, this section does not apply for diagnostics that you do not include in your emission-related maintenance instructions. The provisions of this section address diagnostic systems based on malfunction-indicator lights (MILs). You may ask to use other indicators instead of MILs.

(a) The MIL must be readily visible to the operator. When the MIL goes on, it must display “Check Emission Controls” or a similar message that we approve. You may use sound in addition to the light signal.

(b) To ensure that owner/operators consider MIL illumination seriously, you may not illuminate it for malfunctions that would not otherwise require maintenance. This section does not limit your ability to display other indicator lights or messages, as long as they are clearly distinguishable from MILs affecting the owner/operator's maintenance obligations under § 1033.815.

(c) Control when the MIL can go out. If the MIL goes on to show a malfunction, it must remain on during all later engine operation until servicing corrects the malfunction. If the engine is not serviced, but the malfunction does not recur during the next 24 hours, the MIL may stay off during later engine operation.

(d) Record and store in computer memory any diagnostic trouble codes showing a malfunction that should illuminate the MIL. The stored codes must identify the malfunctioning system or component as uniquely as possible. Make these codes available through the data link connector as described in paragraph (e) of this section. You may store codes for conditions that do not turn on the MIL. The system must store a separate code to show when the diagnostic system is disabled (from malfunction or tampering). Provide instructions to the owner/operator regarding how to interpret malfunction codes.

(e) Make data, access codes, and devices accessible. Make all required data accessible to us without any access codes or devices that only you can supply. Ensure that anyone servicing your locomotive can read and understand the diagnostic trouble codes stored in the onboard computer with generic tools and information.

(f) Follow standard references for formats, codes, and connections.

§ 1033.112Emission diagnostics for SCR systems.

Engines equipped with SCR systems using separate reductant tanks must also meet the requirements of this section in addition to the requirements of § 1033.110. This section does not apply for SCR systems using the engine's fuel as the reductant.

(a) The diagnostic system must monitor reductant quality and tank levels and alert operators to the need to refill the reductant tank before it is empty, or to replace the reductant if it does not meet your concentration specifications. Unless we approve other alerts, use a malfunction-indicator light (MIL) as specified in § 1033.110 and an audible alarm. You do not need to separately monitor reductant quality if you include an exhaust NOX sensor (or other sensor) that allows you to determine inadequate reductant quality. However, tank level must be monitored in all cases.

(b) Your onboard computer must record in nonvolatile computer memory all incidents of engine operation with inadequate reductant injection or reductant quality. It must record the total amount of operation without adequate reductant. It may total the operation by hours, work, or excess NOX emissions.

§ 1033.115Other requirements.

Locomotives that are required to meet the emission standards of this part must meet the requirements of this section. These requirements apply when the locomotive is new (for freshly manufactured or remanufactured locomotives) and continue to apply throughout the useful life.

(a) Crankcase emissions. Crankcase emissions may not be discharged directly into the ambient atmosphere from any locomotive, except as follows:

(1) Locomotives may discharge crankcase emissions to the ambient atmosphere if the emissions are added to the exhaust emissions (either physically or mathematically) during all emission testing. If you take advantage of this exception, you must do both of the following things:

(i) Manufacture the locomotives so that all crankcase emissions can be routed into the applicable sampling systems specified in 40 CFR part 1065, consistent with good engineering judgment.

(2) For purposes of this paragraph (a), crankcase emissions that are routed to the exhaust upstream of exhaust aftertreatment during all operation are not considered to be discharged directly into the ambient atmosphere.

(b) Adjustable parameters. Locomotives that have adjustable parameters must meet all the requirements of this part for any adjustment in the approved adjustable range. You must specify in your application for certification the adjustable range of each adjustable parameter on a new locomotive or new locomotive engine to:

(1) Ensure that safe locomotive operating characteristics are available within that range, as required by section 202(a)(4) of the Clean Air Act (42 U.S.C. 7521(a)(4)), taking into consideration the production tolerances.

(2) Limit the physical range of adjustability to the maximum extent practicable to the range that is necessary for proper operation of the locomotive or locomotive engine.

(c) Prohibited controls. You may not design or produce your locomotives with emission control devices, systems, or elements of design that cause or contribute to an unreasonable risk to public health, welfare, or safety while operating. For example, this would apply if the locomotive emits a noxious or toxic substance it would otherwise not emit that contributes to such an unreasonable risk.

(d) Evaporative and refueling controls. For locomotives fueled with a volatile fuel you must design and produce them to minimize evaporative emissions during normal operation, including periods when the engine is shut down. You must also design and produce them to minimize the escape of fuel vapors during refueling. Hoses used to refuel gaseous-fueled locomotives may not be designed to be bled or vented to the atmosphere under normal operating conditions. No valves or pressure relief vents may be used on gaseous-fueled locomotives except as emergency safety devices that do not operate at normal system operating flows and pressures.

(e) Altitude requirements. All locomotives must be designed to include features that compensate for changes in altitude so that the locomotives will comply with the applicable emission standards when operated at any altitude less than:

(1) 7000 feet above sea level for line-haul locomotives.

(2) 5500 feet above sea level for switch locomotives.

(f) Defeat devices. You may not equip your locomotives with a defeat device. A defeat device is an auxiliary emission control device (AECD) that reduces the effectiveness of emission controls under conditions that the locomotive may reasonably be expected to encounter during normal operation and use.

(1) This does not apply to AECDs you identify in your application for certification if any of the following is true:

(i) The conditions of concern were substantially included in the applicable duty cycle test procedures described in subpart F of this part.

(ii) You show your design is necessary to prevent locomotive damage or accidents.

(iii) The reduced effectiveness applies only to starting the locomotive.

(iv) The locomotive emissions when the AECD is functioning are at or below the notch caps of § 1033.101.

(2) This does not apply to AECDs related to hotel mode that conform to the specifications of this paragraph (f)(2). This provision is intended for AECDs that have the primary function of operating the engine at a different speed than would be done to generate the same propulsive power when not operating in hotel mode. Identify and describe these AECDs in your application for certification. We may allow the AECDs to modify engine calibrations where we determine that such modifications are environmentally beneficial or needed for proper engine function. You must obtain preliminary approval under § 1033.210 before incorporating such modifications. Otherwise, you must apply the same injection timing and intake air cooling strategies in hotel mode and non-hotel mode.

(g) Idle controls. All new locomotives must be equipped with automatic engine stop/start as described in this paragraph (g). All new locomotives must be designed to allow the engine(s) to be restarted at least six times per day without causing engine damage that would affect the expected interval between remanufacturing. Note that it is a violation of 40 CFR 1068.101(b)(1) to circumvent the provisions of this paragraph (g).

(1) Except as allowed by paragraph (g)(2) of this section, the stop/start systems must shut off the main locomotive engine(s) after 30 minutes of idling (or less).

(2) Stop/start systems may restart or continue idling for the following reasons:

(i) To prevent engine damage such as to prevent the engine coolant from freezing.

(ii) To maintain air pressure for brakes or starter system, or to recharge the locomotive battery.

(iii) To perform necessary maintenance.

(iv) To otherwise comply with federal regulations.

(3) You may ask to use alternate stop/start systems that will achieve equivalent idle control.

(4) See § 1033.201 for provisions that allow you to obtain a separate certificate for idle controls.

(5) It is not considered circumvention to allow a locomotive to idle to heat or cool the cab, provided such heating or cooling is necessary.

(h) Power meters. Tier 1 and later locomotives must be equipped with MW-hr meters (or the equivalent) consistent with the specifications of § 1033.140.

(a) General requirements. Manufacturers/remanufacturers must warrant to the ultimate purchaser and each subsequent purchaser that the new locomotive, including all parts of its emission control system, meets two conditions:

(1) It is designed, built, and equipped so it conforms at the time of sale to the ultimate purchaser with the requirements of this part.

(2) It is free from defects in materials and workmanship that may keep it from meeting these requirements.

(b) Warranty period. Except as specified in this paragraph, the minimum warranty period is one-third of the useful life. Your emission-related warranty must be valid for at least as long as the minimum warranty periods listed in this paragraph (b) in MW-hrs of operation (or miles for Tier 0 locomotives not equipped with MW-hr meters) and years, whichever comes first. You may offer an emission-related warranty more generous than we require. The emission-related warranty for the locomotive may not be shorter than any published warranty you offer without charge for the locomotive. Similarly, the emission-related warranty for any component may not be shorter than any published warranty you offer without charge for that component. If you provide an extended warranty to individual owners for any components covered in paragraph (c) of this section for an additional charge, your emission-related warranty must cover those components for those owners to the same degree. If the locomotive does not record MW-hrs, we base the warranty periods in this paragraph (b) only on years. The warranty period begins when the locomotive is placed into service, or back into service after remanufacture.

(c) Components covered. The emission-related warranty covers all components whose failure would increase a locomotive's emissions of any regulated pollutant. This includes components listed in 40 CFR part 1068, Appendix I, and components from any other system you develop to control emissions. The emission-related warranty covers the components you sell even if another company produces the component. Your emission-related warranty does not need to cover components whose failure would not increase a locomotive's emissions of any regulated pollutant. For remanufactured locomotives, your emission-related warranty is required to cover only those parts that you supply or those parts for which you specify allowable part manufacturers. It does not need to cover used parts that are not replaced during the remanufacture.

(d) Limited applicability. You may deny warranty claims under this section if the operator caused the problem through improper maintenance or use, as described in 40 CFR 1068.115.

(e) Owners manual. Describe in the owners manual the emission-related warranty provisions from this section that apply to the locomotive.

Give the owner of each new locomotive written instructions for properly maintaining and using the locomotive, including the emission-control system. Include in the instructions a notification that owners and operators must comply with the requirements of subpart I of this part 1033. The emission-related maintenance instructions also apply to any service accumulation on your emission-data locomotives, as described in § 1033.245 and in 40 CFR part 1065. If you equip your locomotives with a diagnostic system that will detect significant malfunctions in their emission-control systems, specify the extent to which your emission-related maintenance instructions include such diagnostics.

(a) If you do not complete assembly of the new locomotive (such as selling a kit that allows someone else to remanufacture a locomotive under your certificate), give the assembler instructions for completing assembly consistent with the requirements of this part. Include all information necessary to ensure that the locomotive will be assembled in its certified configuration.

(b) Make sure these instructions have the following information:

(1) Include the heading: “Emission-related assembly instructions”

(2) Describe any instructions necessary to make sure the assembled locomotive will operate according to design specifications in your application for certification.

(3) Describe how to properly label the locomotive. This will generally include instructions to remove and destroy the previous Engine Emission Control Information label.

(4) State one of the following as applicable:

(i) “Failing to follow these instructions when remanufacturing a locomotive or locomotive engine violates federal law (40 CFR 1068.105(b)), and may subject you to fines or other penalties as described in the Clean Air Act.”

(ii) “Failing to follow these instructions when installing this locomotive engine violates federal law (40 CFR 1068.105(b)), and may subject you to fines or other penalties as described in the Clean Air Act.”

(c) You do not need installation instructions for locomotives you assemble.

(d) Provide instructions in writing or in an equivalent format. For example, you may post instructions on a publicly available Web site for downloading or printing. If you do not provide the instructions in writing, explain in your application for certification how you will ensure that each assembler is informed of the assembly requirements.

(e) Your emission-related assembly instructions may not include specifications for parts unrelated to emissions. For the basic mechanical parts listed in this paragraph (e), you may not specify a part manufacturer unless we determine that such a specification is necessary. You may include design specifications for such parts addressing the dimensions and material constraints as necessary. You may also specify a part number, as long you make it clear that alternate part suppliers may be used. This paragraph (e) covers the following parts or other parts we determine qualify as basic mechanical parts:

(1) Intake and exhaust valves.

(2) Intake and exhaust valve retainers.

(3) Intake and exhaust valve springs.

(4) Intake and exhaust valve rotators.

(5) Oil coolers.

§ 1033.135Labeling.

As described in this section, each locomotive must have a label on the locomotive and a separate label on the engine. The label on the locomotive stays on the locomotive throughout its service life. It generally identifies the original certification of the locomotive, which is when it was originally manufactured for Tier 1 and later locomotives. The label on the engine is replaced each time the locomotive is remanufactured and identifies the most recent certification.

(a) Serial numbers. At the point of original manufacture, assign each locomotive and each locomotive engine a serial number or other unique identification number and permanently affix, engrave, or stamp the number on the locomotive and engine in a legible way.

(b) Locomotive labels. (1) Locomotive labels meeting the specifications of paragraph (b)(2) of this section must be applied as follows:

(i) The manufacturer must apply a locomotive label at the point of original manufacture.

(ii) The remanufacturer must apply a locomotive label at the point of original remanufacture, unless the locomotive was labeled by the original manufacturer.

(iii) Any remanufacturer certifying a locomotive to an FEL or standard different from the previous FEL or standard to which the locomotive was previously certified must apply a locomotive label.

(2) The locomotive label must meet all of the following criteria:

(i) The label must be permanent and legible and affixed to the locomotive in a position in which it will remain readily visible. Attach it to a locomotive chassis part necessary for normal operation and not normally requiring replacement during the service life of the locomotive. You may not attach this label to the engine or to any equipment that is easily detached from the locomotive. Attach the label so that it cannot be removed without destroying or defacing the label. For Tier 0 and Tier 1 locomotives, the label may be made up of more than one piece, as long as all pieces are permanently attached to the locomotive.

(ii) The label must be lettered in the English language using a color that contrasts with the background of the label.

(iii) The label must include all the following information:

(A) The label heading: “ORIGINAL LOCOMOTIVE EMISSION CONTROL INFORMATION.” Manufacturers/remanufacturers may add a subheading to distinguish this label from the engine label described in paragraph (c) of this section.

(B) Full corporate name and trademark of the manufacturer (or remanufacturer).

(C) The applicable engine family and configuration identification. In the case of locomotive labels applied by the manufacturer at the point of original manufacture, this will be the engine family and configuration identification of the certificate applicable to the freshly manufactured locomotive. In the case of locomotive labels applied by a remanufacturer during remanufacture, this will be the engine family and configuration identification of the certificate under which the remanufacture is being performed.

(D) Date of original manufacture of the locomotive, as defined in § 1033.901.

(E) The standards/FELs to which the locomotive was certified and the following statement: “THIS LOCOMOTIVE MUST COMPLY WITH THESE EMISSION LEVELS EACH TIME THAT IT IS REMANUFACTURED, EXCEPT AS ALLOWED BY 40 CFR 1033.750.”

(3) Label diesel-fueled locomotives near the fuel inlet to identify the allowable fuels, consistent with § 1033.101. For example, Tier 4 locomotives should be labeled “ULTRA LOW SULFUR DIESEL FUEL ONLY”. You do not need to label Tier 3 and earlier locomotives certified for use with both LSD and ULSD.

(c) Engine labels. (1) For engines not requiring aftertreatment devices, apply engine labels meeting the specifications of paragraph (c)(2) of this section once an engine has been assembled in its certified configuration. For engines that require aftertreatment devices, apply the label after the engine has been fully assembled, which may occur before installing the aftertreatment devices. These labels must be applied by:

(i) The manufacturer at the point of original manufacture; and

(ii) The remanufacturer at the point of each remanufacture (including the original remanufacture and subsequent remanufactures).

(2) The engine label must meet all of the following criteria:

(i) The label must be durable throughout the useful life of the engine, be legible and affixed to the engine in a position in which it will be readily visible after installation of the engine in the locomotive. Attach it to an engine part necessary for normal operation and not normally requiring replacement during the useful life of the locomotive. You may not attach this label to any equipment that is easily detached from the engine. Attach the label so it cannot be removed without destroying or defacing the label. The label may be made up of more than one piece, as long as all pieces are permanently attached to the same engine part.

(ii) The label must be lettered in the English language using a color that contrasts with the background of the label.

(iii) The label must include all the following information:

(A) The label heading: “ENGINE EMISSION CONTROL INFORMATION.” Manufacturers/remanufacturers may add a subheading to distinguish this label from the locomotive label described in paragraph (b) of this section.

(B) Full corporate name and trademark of the manufacturer/remanufacturer.

(C) Engine family and configuration identification as specified in the certificate under which the locomotive is being manufactured or remanufactured.

(D) A prominent unconditional statement of compliance with U.S. Environmental Protection Agency regulations which apply to locomotives, as applicable:

(iv) You may include other critical operating instructions such as specifications for adjustments or reductant use for SCR systems.

(d) You may add information to the emission control information label as follows:

(1) You may identify other emission standards that the engine/locomotive meets or does not meet (such as international standards). You may include this information by adding it to the statement we specify or by including a separate statement.

(2) You may add other information to ensure that the locomotive will be properly maintained and used.

(3) You may add appropriate features to prevent counterfeit labels. For example, you may include the engine's unique identification number on the label.

(e) You may ask us to approve modified labeling requirements in this part 1033 if you show that it is necessary or appropriate. We will approve your request if your alternate label is consistent with the requirements of this part.

This section describes how to determine the rated power of a locomotive for the purposes of this part.

(a) A locomotive configuration's rated power is the maximum brake power point on the nominal power curve for the locomotive configuration, as defined in this section. See § 1033.901 for the definition of brake power. Round the power value to the nearest whole horsepower. Generally, this will be the brake power of the engine in notch 8.

(b) The nominal power curve of a locomotive configuration is its maximum available brake power at each possible operator demand setpoint or “notch”. See 40 CFR 1065.1001 for the definition of operator demand. The maximum available power at each operator demand setpoint is based on your design and production specifications for that locomotive. The nominal power curve does not include any operator demand setpoints that are not achievable during in-use operation. For example, for a locomotive with only eight discrete operator demand setpoints, or notches, the nominal power curve would be a series of eight power points versus notch, rather than a continuous curve.

(c) The nominal power curve must be within the range of the actual power curves of production locomotives considering normal production variability. If after production begins it is determined that your nominal power curve does not represent production locomotives, we may require you to amend your application for certification under § 1033.225.

(d) For the purpose of determining useful life, you may need to use a rated power based on power other than brake power according to the provisions of this paragraph (d). The useful life must be based on the power measured by the locomotive's megawatt-hour meter. For example, if your megawatt-hour meter reads and records the electrical work output of the alternator/generator rather than the brake power of the engine, and the power output of the alternator/generator at notch 8 is 4000 horsepower, calculate your useful life as 30,000MW-hrs (7.5 × 4000).

§ 1033.150Interim provisions.

The provisions of this section apply instead of other provisions of this part for a limited time. This section describes when these provisions apply.

(a) Early availability of Tier 0, Tier 1, or Tier 2 systems. Except as specified in paragraph (a)(2) of this section, for model years 2008 and 2009, you may remanufacture locomotives to meet the applicable standards in 40 CFR part 92 only if no remanufacture system has been certified to meet the standards of this part and is available at a reasonable cost at least 90 days prior to the completion of the remanufacture as specified in paragraph (a)(3) of this section. This same provision continues to apply after 2009, but only for Tier 2 locomotives. Note that remanufacturers may certify remanufacturing systems that will not be available at a reasonable cost; however such certification does not trigger the requirements of this paragraph (a).

(1) For the purpose of this paragraph (a), “available at a reasonable cost” means available for use where all of the following are true:

(i) The total incremental cost to the owner and operators of the locomotive due to meeting the new standards (including initial hardware, increased fuel consumption, and increased maintenance costs) during the useful life of the locomotive is less than $250,000, adjusted as specified in paragraph (a)(4)(i) of this section.

(ii) The initial incremental hardware costs are reasonably related to the technology included in the remanufacturing system and are less than $125,000, adjusted as specified in paragraph (a)(4)(i) of this section.

(iii) The remanufactured locomotive will have reliability throughout its useful life that is similar to the reliability the locomotive would have had if it had been remanufactured without the certified remanufacture system.

(iv) The remanufacturer must demonstrate at the time of certification that the system meets the requirements of this paragraph (a)(1).

(v) The system does not generate or use emission credits.

(2) The number of locomotives that each railroad must remanufacture under this paragraph (a) is capped as follows:

(i) For the period October 3, 2008 to December 31, 2008, the maximum number of locomotives that a railroad must remanufacture under this paragraph (a) is 50 percent of the total number of the railroad's locomotives that are remanufactured during this period under this part or 40 CFR part 92. Include in the calculation both locomotives you own and locomotives you lease.

(ii) For the period January 1, 2009 to December 31, 2009, the maximum number of locomotives that a railroad must remanufacture under this paragraph (a) is 70 percent of the total number of the railroad's locomotives that are remanufactured during this period under this part or 40 CFR part 92. Include in the calculation both locomotives you own and locomotives you lease.

(3) Remanufacturers applying for certificates under this paragraph (a) are responsible to notify owner/operators (and other customers as applicable) that they have requested such certificates. The notification should occur at the same time that the remanufacturer submits its application, and should include a description of the remanufacturing system, price, expected incremental operating costs, and draft copies of your installation and maintenance instructions. The system is considered to be available for a customer 120 days after this notification, or 90 days after the certificate is issued, whichever is later. Where we issue a certificate of conformity under this part based on carryover data from an engine family that we previously considered available for the configuration, the system is considered to be available when we issue the certificate.

(4) Estimate costs as follows:

(i) The cost limits described in paragraph (a)(1) of this section are specified in terms of 2007 dollars. Adjust these values for future years according to the following equation:

Actual Limit = (2007 Limit) × [(0.6000) × (Commodity Index) + (0.4000) × (Earnings Index)]Where:2007 Limit = The value specified in paragraph (a)(1) of this section ($250,000 or $125,000).Commodity Index = The U.S. Bureau of Labor Statistics Producer Price Index for Industrial Commodities Less Fuel (Series WPU03T15M05) for the month prior to the date you submit your application divided by 173.1.Earnings Index = The U.S. Bureau of Labor Statistics Estimated Average Hourly Earnings of Production Workers for Durable Manufacturing (Series CES3100000008) for the month prior to the date you submit your application divided by 18.26.

(ii) Calculate all costs in current dollars (for the month prior to the date you submit your application). Calculate fuel costs based on a fuel price adjusted by the Association of American Railroads' monthly railroad fuel price index (P), which is available at https://www.aar.org//media/AAR/RailCostIndexes/Index_MonthlyFuelPrices.ashx. (Use the value for the column in which P equals 539.8 for November 2007.) Calculate a new fuel price using the following equation:

Fuel Price = ($2.76 per gallon) × (P/539.8)

(b) Idle controls. A locomotive equipped with an automatic engine stop/start system that was originally installed before January 1, 2009 and that conforms to the requirements of § 1033.115(g) is deemed to be covered by a certificate of conformity with respect to the requirements of § 1033.115(g). Note that the provisions of subpart C of this part also allow you to apply for a conventional certificate of conformity for such systems.

(c) Locomotive labels for transition to new standards. This paragraph (c) applies when you remanufacture a locomotive that was previously certified under 40 CFR part 92. You must remove the old locomotive label and replace it with the locomotive label specified in § 1033.135.

(d) Small manufacturer/remanufacturer provisions. The production-line testing requirements and in-use testing requirements of this part do not apply until January 1, 2013 for manufacturers/remanufacturers that qualify as small manufacturers under § 1033.901.

(e) Producing switch locomotives using certified nonroad engines. You may use the provisions of this paragraph (e) to produce any number of freshly manufactured or refurbished switch locomotives in model years 2008 through 2017. Locomotives produced under this paragraph (e) are exempt from the standards and requirements of this part and 40 CFR part 92 subject to the following provisions:

(1) All of the engines on the switch locomotive must be covered by a certificate of conformity issued under 40 CFR part 89 or 1039 for model year 2008 or later. Engines over 750 hp certified to the Tier 4 standards for non-generator set engines are not eligible for this allowance after 2014.

(2) You must reasonably project that more of the engines will be sold and used for non-locomotive use than for use in locomotives.

(3) You may not generate or use locomotive credits under this part for these locomotives.

(4) Include the following statement on a permanent locomotive label: “THIS LOCOMOTIVE WAS CERTIFIED UNDER 40 CFR 1033.150(e). THE ENGINES USED IN THIS LOCOMOTIVE ARE SUBJECT TO REQUIREMENTS OF 40 CFR PARTS 1039 (or 89) AND 1068.”

(5) The rebuilding requirements of 40 CFR part 1068 apply when remanufacturing engines used in these locomotives.

(f) In-use compliance limits. For purposes of determining compliance other than for certification or production-line testing, calculate the applicable in-use compliance limits by adjusting the applicable standards/FELs. The PM adjustment applies only for model year 2017 and earlier locomotives and does not apply for locomotives with a PM FEL higher than 0.03 g/bhp-hr. The NOX adjustment applies only for model year 2017 and earlier locomotives and does not apply for locomotives with a NOX FEL higher than 2.0 g/bhp-hr. Add the applicable adjustments in Tables 1 or 2 of this section (which follow) to the otherwise applicable standards (or FELs) and notch caps. You must specify during certification which add-ons, if any, will apply for your locomotives.

(g) Optional interim Tier 4 compliance provisions for NOX emissions. For model years 2015 through 2022, manufacturers may choose to certify some or all of their Tier 4 line-haul engine families according to the optional compliance provisions of this paragraph (g). The following provisions apply to all locomotives in those families:

(1) The provisions of this paragraph (g) apply instead of the deterioration factor requirements of §§ 1033.240 and 1033.245 for NOX emissions. You must certify that the locomotives in the engine family will conform to the requirements of this paragraph (g) for their full useful lives.

(i) 1.3 g/bhp-hr for locomotives that have accumulated less than 50 hours of operation.

(ii) 1.3 plus 0.6 g/bhp-hr for locomotives that have accumulated 50 hours or more of operation.

(3) The engine family may not generate NOX emission credits.

(4) The design certification provisions of § 1033.240(c) do not apply for these locomotives for the next remanufacture.

(5) Manufacturers must comply with the production-line testing program in subpart D of this part for these engine families or the following optional program:

(i) You are not required to test locomotives in the family under subpart D of this part if you comply with the requirements of this paragraph (g)(5).

(ii) Test the locomotives as specified in subpart E of this part, with the following exceptions:

(A) The minimum test sample size is one percent of the number of locomotives in the family or five, whichever is less.

(B) The locomotives must be tested after they have accumulated 50 hours or more of operation but before they have reached 50 percent of their useful life.

(iii) The standards in this part for pollutants other than NOX apply as specified for testing conducted under this optional program.

(6) The engine family may use NOX emission credits to comply with this paragraph (g). However, a 1.5 g/bhp-hr NOX FEL cap applies for engine families certified under this paragraph (g). The applicable standard for locomotives that have accumulated 50 hours or more of operation is the FEL plus 0.6 g/bhp-hr.

(7) The in-use NOX add-ons specified in paragraph (f) of this section do not apply for these locomotives.

(8) All other provisions of this part apply to such locomotives, except as specified otherwise in this paragraph (g).

(h) Test procedures. You are generally required to use the test procedures specified in subpart F of this part (including the applicable test procedures in 40 CFR part 1065). As specified in this paragraph (h), you may use a combination of the test procedures specified in this part and the test procedures specified in 40 CFR part 92 prior to January 1, 2015. After this date, you must use only the test procedures specified in this part.

(1) Prior to January 1, 2015, you may ask to use some or all of the procedures specified in 40 CFR part 92 for locomotives certified under this part 1033.

(2) If you ask to rely on a combination of procedures under this paragraph (h), we will approve your request only if you show us that it does not affect your ability to demonstrate compliance with the applicable emission standards. Generally this requires that the combined procedures would result in emission measurements at least as high as those that would be measured using the procedures specified in this part. Alternatively, you may demonstrate that the combined effects of the different procedures is small relative to your compliance margin (the degree to which your emissions are below the applicable standards).

(i) Certification testing. Prior to model year 2014, you may use the simplified steady-state engine test procedure specified in this paragraph (i) for certification testing. The normal certification procedures and engine testing procedures apply, except as specified in this paragraph (i).

(1) Use good engineering judgment to operate the engine consistent with its expected operation in the locomotive, to the extent practical. You are not required to exactly replicate the transient behavior of the engine.

(2) You may delay sampling during notch transition for up to 20 seconds after you begin the notch change.

(3) We may require you provide additional information in your application for certification to support the expectation that production locomotives will meet all applicable emission standards when tested as locomotives.

(4) You may not use this simplified procedure for production-line or in-use testing.

(j) Administrative requirements. For model years 2008 and 2009, you may use a combination of the administrative procedures specified in this part and the test procedures specified in 40 CFR part 92. For example, this would allow you to use the certification procedures of 40 CFR part 92 to apply for certificates under this part 1033.

(k) Test fuels. Testing performed during calendar years 2008 and 2009 may be performed using test fuels that meet the specifications of 40 CFR 92.113. If you do, adjust PM emissions downward by 0.04 g/bhp-hr to account for the difference in sulfur content of the fuel.

(l) Refurbished switch locomotives. In 2008 and 2009 remanufactured Tier 0 switch locomotives that are deemed to be refurbished may be certified as remanufactured switch locomotives under 40 CFR part 92.

(m) Assigned deterioration factors. The provisions of this paragraph (m) apply for Tier 0 and Tier 1 locomotives to the standards of this part during model years 2008 or 2009. Remanufacturers certifying such locomotives to the standards of this part during these model years may use an assigned deterioration factor of 0.03 g/bhp-hr for PM and an assigned deterioration factor of zero for other pollutants. For purposes of determining compliance other than for certification or production-line testing, calculate the applicable in-use compliance limits for these locomotives by adjusting the applicable PM standards/FELs upward by 0.03 g/bhp-hr.

Certification is the process by which you demonstrate to us that your freshly manufactured or remanufactured locomotives will meet the applicable emission standards throughout their useful lives (explaining to us how you plan to manufacture or remanufacture locomotives, and providing test data showing that such locomotives will comply with all applicable emission standards). Anyone meeting the definition of manufacturer in § 1033.901 may apply for a certificate of conformity for freshly manufactured locomotives. Anyone meeting the definition of remanufacturer in § 1033.901 may apply for a certificate of conformity for remanufactured locomotives.

(a) You must send us a separate application for a certificate of conformity for each engine family. A certificate of conformity is valid starting with the indicated effective date, but it is not valid for any production after December 31 of the model year for which it is issued. No certificate will be issued after December 31 of the model year.

(b) The application must contain all the information required by this part and must not include false or incomplete statements or information (see § 1033.255).

(c) We may ask you to include less information than we specify in this subpart, as long as you maintain all the information required by § 1033.250.

(d) You must use good engineering judgment for all decisions related to your application (see 40 CFR 1068.5).

(e) An authorized representative of your company must approve and sign the application.

(f) See § 1033.255 for provisions describing how we will process your application.

(g) We may require you to deliver your test locomotives to a facility we designate for our testing (see § 1033.235(c)).

(h) By applying for a certificate of conformity, you are accepting responsibility for the in-use emission performance of all properly maintained and used locomotives covered by your certificate. This responsibility applies without regard to whether you physically manufacture or remanufacture the entire locomotive. If you do not physically manufacture or remanufacture the entire locomotive, you must take reasonable steps (including those specified by this part) to ensure that the locomotives produced under your certificate conform to the specifications of your application for certification. Note that this paragraph does not limit any liability under this part or the Clean Air Act for entities that do not obtain certificates. This paragraph also does not prohibit you from making contractual arrangements with noncertifiers related to recovering damages for noncompliance.

(i) The provisions of this subpart describe how to obtain a certificate that covers all standards and requirements. Manufacturer/remanufacturers may ask to obtain a certificate of conformity that does not cover the idle control requirements of § 1033.115 or one that only covers the idle control requirements of § 1033.115. Remanufacturers obtaining such partial certificates must include a statement in their installation instructions that two certificates and labels are required for a locomotive to be in a fully certified configuration. We may modify the certification requirements for certificates that will only cover idle control systems.

§ 1033.205Applying for a certificate of conformity.

(a) Send the Designated Compliance Officer a complete application for each engine family for which you are requesting a certificate of conformity.

(b) [Reserved]

(c) You must update and correct your application to accurately reflect your production, as described in § 1033.225.

(d) Include the following information in your application:

(1) A description of the basic engine design including, but not limited to, the engine family specifications listed in § 1033.230. For freshly manufactured locomotives, a description of the basic locomotive design. For remanufactured locomotives, a description of the basic locomotive designs to which the remanufacture system will be applied. Include in your description, a list of distinguishable configurations to be included in the engine family. Note whether you are requesting a certificate that will or will not cover idle controls.

(2) An explanation of how the emission control system operates, including detailed descriptions of:

(i) All emission control system components.

(ii) Injection or ignition timing for each notch (i.e., degrees before or after top-dead-center), and any functional dependence of such timing on other operational parameters (e.g., engine coolant temperature).

(iii) Each auxiliary emission control device (AECD).

(iv) All fuel system components to be installed on any production or test locomotives.

(v) Diagnostics.

(3) A description of the test locomotive.

(4) A description of the test equipment and fuel used. Identify any special or alternate test procedures you used.

(5) A description of the operating cycle and the period of operation necessary to accumulate service hours on the test locomotive and stabilize emission levels. You may also include a Green Engine Factor that would adjust emissions from zero-hour engines to be equivalent to stabilized engines.

(6) A description of all adjustable operating parameters (including, but not limited to, injection timing and fuel rate), including the following:

(i) The nominal or recommended setting and the associated production tolerances.

(ii) The intended adjustable range, and the physically adjustable range.

(iii) The limits or stops used to limit adjustable ranges.

(iv) Production tolerances of the limits or stops used to establish each physically adjustable range.

(v) Information relating to why the physical limits or stops used to establish the physically adjustable range of each parameter, or any other means used to inhibit adjustment, are the most effective means possible of preventing adjustment of parameters to settings outside your specified adjustable ranges on in-use engines.

(7) Projected U.S. production information for each configuration. If you are projecting substantially different sales of a configuration than you had previously, we may require you to explain why you are projecting the change.

(8)(i) All test data you obtained for each test engine or locomotive. As described in § 1033.235, we may allow you to demonstrate compliance based on results from previous emission tests, development tests, or other testing information. Include data for NOx, PM, HC, CO, and CO2.

(ii) Report measured CO2, N2O, and CH4 as described in § 1033.235. Small manufacturers/remanufacturers may omit reporting N2O and CH4.

(9) The intended deterioration factors for the engine family, in accordance with § 1033.245. If the deterioration factors for the engine family were developed using procedures that we have not previously approved, you should request preliminary approval under § 1033.210.

(10) The intended useful life period for the engine family, in accordance with § 1033.101(g). If the useful life for the engine family was determined using procedures that we have not previously approved, you should request preliminary approval under § 1033.210.

(12) An unconditional statement declaring that all locomotives included in the engine family comply with all requirements of this part and the Clean Air Act.

(e) If we request it, you must supply such additional information as may be required to evaluate the application.

(f) Provide the information to read, record, and interpret all the information broadcast by a locomotive's onboard computers and electronic control units. State that, upon request, you will give us any hardware, software, or tools we would need to do this. You may reference any appropriate publicly released standards that define conventions for these messages and parameters. Format your information consistent with publicly released standards.

(g) Include the information required by other subparts of this part. For example, include the information required by § 1033.725 if you participate in the ABT program.

(h) Include other applicable information, such as information specified in this part or part 1068 of this chapter related to requests for exemptions.

(i) Name an agent for service located in the United States. Service on this agent constitutes service on you or any of your officers or employees for any action by EPA or otherwise by the United States related to the requirements of this part.

(j) For imported locomotives, we may require you to describe your expected importation process.

(a) If you send us information before you finish the application, we will review it and make any appropriate determinations for questions related to engine family definitions, auxiliary emission-control devices, deterioration factors, testing for service accumulation, maintenance, and useful lives.

(b) Decisions made under this section are considered to be preliminary approval, subject to final review and approval. We will generally not reverse a decision where we have given you preliminary approval, unless we find new information supporting a different decision.

(c) If you request preliminary approval related to the upcoming model year or the model year after that, we will make best-efforts to make the appropriate determinations as soon as practicable. We will generally not provide preliminary approval related to a future model year more than three years ahead of time.

(d) You must obtain preliminary approval for your plan to develop deterioration factors prior to the start of any service accumulation to be used to develop the factors.

§ 1033.220Amending maintenance instructions.

You may amend your emission-related maintenance instructions after you submit your application for certification, as long as the amended instructions remain consistent with the provisions of § 1033.125. You must send the Designated Compliance Officer a request to amend your application for certification for an engine family if you want to change the emission-related maintenance instructions in a way that could affect emissions. In your request, describe the proposed changes to the maintenance instructions. If owners/operators follow the original maintenance instructions rather than the newly specified maintenance, this does not allow you to disqualify those locomotives from in-use testing or deny a warranty claim.

(a) If you are decreasing or eliminating any of the specified maintenance, you may distribute the new maintenance instructions to your customers 30 days after we receive your request, unless we disapprove your request. This would generally include replacing one maintenance step with another. We may approve a shorter time or waive this requirement.

(b) If your requested change would not decrease the specified maintenance, you may distribute the new maintenance instructions anytime after you send your request. For example, this paragraph (b) would cover adding instructions to increase the frequency of filter changes for locomotives in severe-duty applications.

(c) You do not need to request approval if you are making only minor corrections (such as correcting typographical mistakes), clarifying your maintenance instructions, or changing instructions for maintenance unrelated to emission control. We may ask you to send us copies of maintenance instructions revised under this paragraph (c).

Before we issue you a certificate of conformity, you may amend your application to include new or modified locomotive configurations, subject to the provisions of this section. After we have issued your certificate of conformity, you may send us an amended application requesting that we include new or modified locomotive configurations within the scope of the certificate, subject to the provisions of this section. You must also amend your application if any changes occur with respect to any information that is included or should be included in your application. For example, you must amend your application if you determine that your actual production variation for an adjustable parameter exceeds the tolerances specified in your application.

(a) You must amend your application before you take either of the following actions:

(1) Add a locomotive configuration to an engine family. In this case, the locomotive added must be consistent with other locomotives in the engine family with respect to the criteria listed in § 1033.230. For example, you must amend your application if you want to produce 12-cylinder versions of the 16-cylinder locomotives you described in your application.

(2) Change a locomotive already included in an engine family in a way that may affect emissions, or change any of the components you described in your application for certification. This includes production and design changes that may affect emissions any time during the locomotive's lifetime. For example, you must amend your application if you want to change a part supplier if the part was described in your original application and is different in any material respect than the part you described.

(3) Modify an FEL for an engine family as described in paragraph (f) of this section.

(b) To amend your application for certification, send the relevant information to the Designated Compliance Officer.

(1) Describe in detail the addition or change in the locomotive model or configuration you intend to make.

(2) Include engineering evaluations or data showing that the amended engine family complies with all applicable requirements. You may do this by showing that the original emission-data locomotive is still appropriate for showing that the amended family complies with all applicable requirements.

(3) If the original emission-data locomotive for the engine family is not appropriate to show compliance for the new or modified locomotive, include new test data showing that the new or modified locomotive meets the requirements of this part.

(c) We may ask for more test data or engineering evaluations. You must give us these within 30 days after we request them.

(d) For engine families already covered by a certificate of conformity, we will determine whether the existing certificate of conformity covers your new or modified locomotive. You may ask for a hearing if we deny your request (see § 1033.920).

(e) For engine families already covered by a certificate of conformity, you may start producing the new or modified locomotive anytime after you send us your amended application, before we make a decision under paragraph (d) of this section. However, if we determine that the affected locomotives do not meet applicable requirements, we will notify you to cease production of the locomotives and may require you to recall the locomotives at no expense to the owner. Choosing to produce locomotives under this paragraph (e) is deemed to be consent to recall all locomotives that we determine do not meet applicable emission standards or other requirements and to remedy the nonconformity at no expense to the owner. If you do not provide information required under paragraph (c) of this section within 30 days after we request it, you must stop producing the new or modified locomotives.

(f) You may ask us to approve a change to your FEL in certain cases after the start of production. The changed FEL may not apply to locomotives you have already introduced into U.S. commerce, except as described in this paragraph (f). If we approve a changed FEL after the start of production, you must include the new FEL on the emission control information label for all locomotives produced after the change. You may ask us to approve a change to your FEL in the following cases:

(1) You may ask to raise your FEL for your engine family at any time. In your request, you must show that you will still be able to meet the emission standards as specified in subparts B and H of this part. If you amend your application by submitting new test data to include a newly added or modified locomotive, as described in paragraph (b)(3) of this section, use the appropriate FELs with corresponding production volumes to calculate emission credits for the model year, as described in subpart H of this part. In all other circumstances, you must use the higher FEL for the entire family to calculate emission credits under subpart H of this part.

(2) You may ask to lower the FEL for your emission family only if you have test data from production locomotives showing that emissions are below the proposed lower FEL. The lower FEL applies only to engines or fuel-system components you produce after we approve the new FEL. Use the appropriate FELs with corresponding production volumes to calculate emission credits for the model year, as described in subpart H of this part.

(a) Divide your product line into engine families of locomotives that are expected to have similar emission characteristics throughout the useful life. Your engine family is limited to a single model year. Freshly manufactured locomotives may not be included in the same engine family as remanufactured locomotives, except as allowed by paragraph (f) of this section. Paragraphs (b) and (c) of this section specify default criteria for dividing locomotives into engine families. Paragraphs (d) and (e) of this section allow you deviate from these defaults in certain circumstances.

(b) This paragraph (b) applies for all locomotives other than Tier 0 locomotives. Group locomotives in the same engine family if they are the same in all the following aspects:

(4) The approximate location of the intake and exhaust valves (or ports).

(5) The combustion chamber general configuration and the approximate surface-to-volume ratio of the combustion chamber when the piston is at top dead center position, using nominal combustion chamber dimensions.

(7) The type of air inlet cooler (air-to-air, air-to-liquid, approximate degree to which inlet air is cooled).

(8) The type of fuel and general fuel system configuration.

(9) The general configuration of the fuel injectors and approximate injection pressure.

(10) The type of fuel injection system control (electronic or mechanical).

(d) You may subdivide a group of locomotives that is identical under paragraph (b) or (c) of this section into different engine families if you show the expected emission characteristics are different during the useful life. This allowance also covers locomotives for which only calculated emission rates differ, such as locomotives with and without energy-saving design features. For the purposes of determining whether an engine family is a small engine family in § 1033.405(a)(2), we will consider the number of locomotives that could have been classed together under paragraph (b) or (c) of this section, instead of the number of locomotives that are included in a subdivision allowed by this paragraph (d).

(e) In unusual circumstances, you may group locomotives that are not identical with respect to the things listed in paragraph (b) or (c) of this section in the same engine family if you show that their emission characteristics during the useful life will be similar.

(f) During the first six calendar years after a new tier of standards becomes applicable, remanufactured engines/locomotives may be included in the same engine family as freshly manufactured locomotives, provided the same engines and emission controls are used for locomotive models included in the engine family.

This section describes the emission testing you must perform to show compliance with the emission standards in § 1033.101.

(a) Select an emission-data locomotive (or engine) from each engine family for testing. It may be a low mileage locomotive, or a development engine (that is equivalent in design to the engines of the locomotives being certified), or another low hour engine. Use good engineering judgment to select the locomotive configuration that is most likely to exceed (or have emissions nearest to) an applicable emission standard or FEL. In making this selection, consider all factors expected to affect emission control performance and compliance with the standards, including emission levels of all exhaust constituents, especially NOX and PM.

(b) Test your emission-data locomotives using the procedures and equipment specified in subpart F of this part.

(c) We may measure emissions from any of your emission-data locomotives or other locomotives from the engine family.

(1) We may decide to do the testing at your plant or any other facility. If we do this, you must deliver the locomotive to a test facility we designate. If we do the testing at your plant, you must schedule it as soon as possible and make available the instruments, personnel, and equipment we need.

(2) If we measure emissions from one of your locomotives, the results of that testing become the official emission results for the locomotive. Unless we later invalidate these data, we may decide not to consider your data in determining if your engine family meets applicable requirements.

(3) Before we test one of your locomotives, we may set its adjustable parameters to any point within the adjustable ranges (see § 1033.115(b)).

(4) Before we test one of your locomotives, we may calibrate it within normal production tolerances for anything we do not consider an adjustable parameter. For example, this would apply where we determine that an engine parameter is not an adjustable parameter (as defined in § 1033.901) but that it is subject to production variability.

(d) You may ask to use carryover emission data from a previous model year instead of doing new tests if all the following are true:

(1) The engine family from the previous model year differs from the current engine family only with respect to model year, or other factors not related to emissions. You may include additional configurations subject to the provisions of § 1033.225.

(2) The emission-data locomotive from the previous model year remains the appropriate emission-data locomotive under paragraph (b) of this section.

(3) The data show that the emission-data locomotive would meet all the requirements that apply to the engine family covered by the application for certification.

(e) You may ask to use emission data from a different engine family you have already certified instead of testing a locomotive in the second engine family if all the following are true:

(1) The same engine is used in both engine families.

(2) You demonstrate to us that the differences in the two families are sufficiently small that the locomotives in the untested family will meet the same applicable notch standards calculated from the test data.

(f) We may require you to test a second locomotive of the same or different configuration in addition to the locomotive tested under paragraph (b) of this section.

(g) If you use an alternate test procedure under 40 CFR 1065.10 and later testing shows that such testing does not produce results that are equivalent to the procedures specified in subpart F of this part, we may reject data you generated using the alternate procedure.

(h) The requirement to measure smoke emissions is waived for certification and production line testing, except where there is reason to believe your locomotives do not meet the applicable smoke standards.

(i) Measure CO2 with each test. Measure CH4 with each low-hour certification test using the procedures specified in 40 CFR part 1065 starting in the 2012 model year. Also measure N2O with each low-hour certification test using the procedures specified in 40 CFR part 1065 for any engine family that depends on NOx aftertreatment to meet emission standards. Small manufacturers/remanufacturers may omit measurement of N2O and CH4. Use the same units and modal calculations as for your other results to report a single weighted value for CO2, N2O, and CH4. Round the final values as follows:

(a) For purposes of certification, your engine family is considered in compliance with the applicable numerical emission standards in § 1033.101 if all emission-data locomotives representing that family have test results showing official emission results and deteriorated emission levels at or below these standards.

(1) If you include your locomotive in the ABT program in subpart H of this part, your FELs are considered to be the applicable emission standards with which you must comply.

(2) If you do not include your remanufactured locomotive in the ABT program in subpart H of this part, but it was previously included in the ABT program in subpart H of this part, the previous FELs are considered to be the applicable emission standards with which you must comply.

(b) Your engine family is deemed not to comply if any emission-data locomotive representing that family has test results showing an official emission result or a deteriorated emission level for any pollutant that is above an applicable emission standard. Use the following steps to determine the deteriorated emission level for the test locomotive:

(1) Collect emission data using measurements with enough significant figures to calculate the cycle-weighted emission rate to at least one more decimal place than the applicable standard. Apply any applicable humidity corrections before weighting emissions.

(2) Apply the regeneration factors if applicable. At this point the emission rate is generally considered to be an official emission result.

(3) Apply the deterioration factor to the official emission result, as described in § 1033.245, then round the adjusted figure to the same number of decimal places as the emission standard. This adjusted value is the deteriorated emission level. Compare these emission levels from the emission-data locomotive with the applicable emission standards. In the case of NOX+NMHC standards, apply the deterioration factor to each pollutant and then add the results before rounding.

(4) The highest deteriorated emission levels for each pollutant are considered to be the certified emission levels.

(c) An owner/operator remanufacturing its locomotives to be identical to their previously certified configuration may certify by design without new emission test data. To do this, submit the application for certification described in § 1033.205, but instead of including test data, include a description of how you will ensure that your locomotives will be identical in all material respects to their previously certified condition. You may use reconditioned parts consistent with good engineering judgment. You have all of the liabilities and responsibilities of the certificate holder for locomotives you certify under this paragraph.

Establish deterioration factors for each pollutant to determine, as described in § 1033.240, whether your locomotives will meet emission standards for each pollutant throughout the useful life. Determine deterioration factors as described in this section, either with an engineering analysis, with pre-existing test data, or with new emission measurements. The deterioration factors are intended to reflect the deterioration expected to result during the useful life of a locomotive maintained as specified in § 1033.125. If you perform durability testing, the maintenance that you may perform on your emission-data locomotive is limited to the maintenance described in § 1033.125.

(a) Your deterioration factors must take into account any available data from in-use testing with similar locomotives, consistent with good engineering judgment. For example, it would not be consistent with good engineering judgment to use deterioration factors that predict emission increases over the useful life of a locomotive or locomotive engine that are significantly less than the emission increases over the useful life observed from in-use testing of similar locomotives.

(b) Deterioration factors may be additive or multiplicative.

(1) Additive deterioration factor for exhaust emissions. Except as specified in paragraph (b)(2) of this section, use an additive deterioration factor for exhaust emissions. An additive deterioration factor for a pollutant is the difference between exhaust emissions at the end of the useful life and exhaust emissions at the low-hour test point. In these cases, adjust the official emission results for each tested locomotive at the selected test point by adding the factor to the measured emissions. The deteriorated emission level is intended to represent the highest emission level during the useful life. Thus, if the factor is less than zero, use zero. Additive deterioration factors must be specified to one more decimal place than the applicable standard.

(2) Multiplicative deterioration factor for exhaust emissions. Use a multiplicative deterioration factor if good engineering judgment calls for the deterioration factor for a pollutant to be the ratio of exhaust emissions at the end of the useful life to exhaust emissions at the low-hour test point. For example, if you use aftertreatment technology that controls emissions of a pollutant proportionally to engine-out emissions, it is often appropriate to use a multiplicative deterioration factor. Adjust the official emission results for each tested locomotive at the selected test point by multiplying the measured emissions by the deterioration factor. The deteriorated emission level is intended to represent the highest emission level during the useful life. Thus, if the factor is less than one, use one. A multiplicative deterioration factor may not be appropriate in cases where testing variability is significantly greater than locomotive-to-locomotive variability. Multiplicative deterioration factors must be specified to one more significant figure than the applicable standard.

(c) Deterioration factors for smoke are always additive.

(d) If your locomotive vents crankcase emissions to the exhaust or to the atmosphere, you must account for crankcase emission deterioration, using good engineering judgment. You may use separate deterioration factors for crankcase emissions of each pollutant (either multiplicative or additive) or include the effects in combined deterioration factors that include exhaust and crankcase emissions together for each pollutant.

(e) Include the following information in your application for certification:

(1) If you determine your deterioration factors based on test data from a different engine family, explain why this is appropriate and include all the emission measurements on which you base the deterioration factor.

(2) If you determine your deterioration factors based on engineering analysis, explain why this is appropriate and include a statement that all data, analyses, evaluations, and other information you used are available for our review upon request.

(3) If you do testing to determine deterioration factors, describe the form and extent of service accumulation, including a rationale for selecting the service-accumulation period and the method you use to accumulate hours.

§ 1033.250Reporting and recordkeeping.

(a) Within 45 days after the end of the model year, send the Designated Compliance Officer a report describing the following information about locomotives you produced during the model year:

(1) Report the total number of locomotives you produced in each engine family by locomotive model and engine model.

(2) If you produced exempted locomotives, report the number of exempted locomotives you produced for each locomotive model and identify the buyer or shipping destination for each exempted locomotive. You do not need to report under this paragraph (a)(2) locomotives that were temporarily exempted, exported locomotives, locomotives exempted as manufacturer/remanufacturer-owned locomotives, or locomotives exempted as test locomotives.

(b) Organize and maintain the following records:

(1) A copy of all applications and any summary information you send us.

(2) Any of the information we specify in § 1033.205 that you were not required to include in your application.

(3) A detailed history of each emission-data locomotive. For each locomotive, describe all of the following:

(i) The emission-data locomotive's construction, including its origin and buildup, steps you took to ensure that it represents production locomotives, any components you built specially for it, and all the components you include in your application for certification.

(ii) How you accumulated locomotive operating hours (service accumulation), including the dates and the number of hours accumulated.

(iii) All maintenance, including modifications, parts changes, and other service, and the dates and reasons for the maintenance.

(iv) All your emission tests, including documentation on routine and standard tests, as specified in part 40 CFR part 1065, and the date and purpose of each test.

(v) All tests to diagnose locomotive or emission control performance, giving the date and time of each and the reasons for the test.

(vi) Any other significant events.

(4) If you test a development engine for certification, you may omit information otherwise required by paragraph (b)(3) of this section that is unrelated to emissions and emission-related components.

(5) Production figures for each engine family divided by assembly plant.

(6) Keep a list of locomotive identification numbers for all the locomotives you produce under each certificate of conformity.

(c) Keep data from routine emission tests (such as test cell temperatures and relative humidity readings) for one year after we issue the associated certificate of conformity. Keep all other information specified in paragraph (a) of this section for eight years after we issue your certificate.

(d) Store these records in any format and on any media, as long as you can promptly send us organized, written records in English if we ask for them. You must keep these records readily available. We may review them at any time.

(e) Send us copies of any locomotive maintenance instructions or explanations if we ask for them.

§ 1033.255EPA decisions.

(a) If we determine your application is complete and shows that the engine family meets all the requirements of this part and the Clean Air Act, we will issue a certificate of conformity for your engine family for that model year. We may make the approval subject to additional conditions.

(b) We may deny your application for certification if we determine that your engine family fails to comply with emission standards or other requirements of this part or the Clean Air Act. We will base our decision on all available information. If we deny your application, we will explain why in writing.

(c) In addition, we may deny your application or suspend or revoke your certificate if you do any of the following:

(1) Refuse to comply with any testing or reporting requirements.

(2) Submit false or incomplete information (paragraph (e) of this section applies if this is fraudulent).

(3) Render inaccurate any test data.

(4) Deny us from completing authorized activities. This includes a failure to provide reasonable assistance.

(5) Produce locomotives for importation into the United States at a location where local law prohibits us from carrying out authorized activities.

(6) Fail to supply requested information or amend your application to include all locomotives being produced.

(7) Take any action that otherwise circumvents the intent of the Clean Air Act or this part.

(d) We may void your certificate if you do not keep the records we require or do not give us information when we ask for it.

(e) We may void your certificate if we find that you intentionally submitted false or incomplete information.

(f) If we deny your application or suspend, revoke, or void your certificate, you may ask for a hearing (see § 1033.920).

The requirements of this part apply to manufacturers/remanufacturers of locomotives certified under this part, with the following exceptions:

(a) The requirements of §§ 1033.310 1033.315, 1033.320, and 1033.330 apply only to manufacturers of freshly manufactured locomotives or locomotive engines (including those used for repowering). We may also apply these requirements to remanufacturers of any locomotives for which there is reason to believe production problems exist that could affect emission performance. When we make a determination that production problems may exist that could affect emission performance, we will notify the remanufacturer(s). The requirements of §§ 1033.310, 1033.315, 1033.320, and 1033.330 will apply as specified in the notice.

(b) The requirements of § 1033.335 apply only to remanufacturers.

(c) As specified in § 1033.1(d), we may apply the requirements of this subpart to manufacturers/remanufacturers that do not certify the locomotives. However, unless we specify otherwise, the requirements of this subpart apply to manufacturers/remanufacturers that hold the certificates for the locomotives.

§ 1033.305General requirements.

(a) Manufacturers (and remanufacturers, where applicable) are required to test production line locomotives using the test procedures specified in § 1033.315. While this subpart refers to locomotive testing, you may ask to test locomotive engines instead of testing locomotives.

(b) Remanufacturers are required to conduct audits according to the requirements of § 1033.335 to ensure that remanufactured locomotives comply with the requirements of this part.

(c) If you certify an engine family with carryover emission data, as described in § 1033.235, and these equivalent engine families consistently pass the production-line testing requirements over the preceding two-year period, you may ask for a reduced testing rate for further production-line testing for that family. If we reduce your testing rate, we may limit our approval to any number of model years. In determining whether to approve your request, we may consider the number of locomotives that have failed emission tests.

(d) You may ask to use an alternate program or measurement method for testing production-line engines. In your request, you must show us that the alternate program gives equal assurance that your engines meet the requirements of this part. We may waive some or all of this subpart's requirements if we approve your alternate program.

§ 1033.310Sample selection for testing.

(a) At the start of each model year, begin randomly selecting locomotives from each engine family for production line testing at a rate of one percent. Make the selection of the test locomotive after it has been assembled. Perform the testing throughout the entire model year to the extent possible, unless we specify a different schedule for your tests. For example, we may require you to disproportionately select locomotives from the early part of a model year for a new locomotive model that has not been subject to PLT previously.

(1) The required sample size for an engine family (provided that no locomotive tested fails to meet applicable emission standards) is the lesser of five tests per model year or one percent of projected annual production, with a minimum sample size for an engine family of one test per model year. See paragraph (d) of this section to determine the required number of test locomotives if any locomotives fail to comply with any standards.

(2) You may elect to test additional locomotives. All additional locomotives must be tested in accordance with the applicable test procedures of this part.

(b) You must assemble the test locomotives using the same production process that will be used for locomotives to be introduced into commerce. You may ask us to allow special assembly procedures for catalyst-equipped locomotives.

(c) Unless we approve it, you may not use any quality control, testing, or assembly procedures that you do not use during the production and assembly of all other locomotives of that family. This applies for any test locomotive or any portion of a locomotive, including engines, parts, and subassemblies.

(d) If one or more locomotives fail a production line test, then you must test two additional locomotives from the next fifteen produced in that engine family for each locomotive that fails. These two additional locomotives do not count towards your minimum number of locomotives. For example, if you are required to test a minimum of four locomotives under paragraph (a) of this section and the second locomotive fails to comply with one or more standards, then you must test two additional locomotives from the next fifteen produced in that engine family. If both of those locomotives pass all standards, you are required to test two additional locomotives to complete the original minimum number of four. If they both pass, you are done with testing for that family for the year since you tested six locomotives (the four originally required plus the two additional locomotives).

§ 1033.315Test procedures.

(a) Test procedures. Use the test procedures described in subpart F of this part, except as specified in this section.

(1) You may ask to use other test procedures. We will approve your request if we determine that it is not possible to perform satisfactory testing using the specified procedures. We may also approve alternate test procedures under § 1033.305(d).

(2) If you used test procedures other than those in subpart F of this part during certification for the engine family (other than alternate test procedures necessary for testing a development engine or a low hour engine instead of a low mileage locomotive), use the same test procedures for production line testing that you used in certification.

(b) Modifying a test locomotive. Once an engine is selected for testing, you may adjust, repair, maintain, or modify it or check its emissions only if one of the following is true:

(1) You document the need for doing so in your procedures for assembling and inspecting all your production engines and make the action routine for all the engines in the engine family.

(2) This subpart otherwise specifically allows your action.

(3) We approve your action in advance.

(c) Adjustable parameters. (1) Confirm that adjustable parameters are set to values or positions that are within the range recommended to the ultimate purchaser.

(2) We may require to be adjusted any adjustable parameter to any setting within the specified adjustable range of that parameter prior to the performance of any test.

(d) Stabilizing emissions. You may stabilize emissions from the locomotives to be tested through service accumulation by running the engine through a typical duty cycle. Emissions are considered stabilized after 300 hours of operation. You may accumulate fewer hours, consistent with good engineering judgment. You may establish a Green Engine Factor for each regulated pollutant for each engine family, instead of (or in combination with) accumulating actual operation, to be used in calculating emissions test results. You must obtain our approval prior to using a Green Engine Factor. For catalyst-equipped locomotives, you may operate the locomotive for up to 1000 hours (in revenue or other service) prior to testing.

(e) Adjustment after shipment. If a locomotive is shipped to a facility other than the production facility for production line testing, and an adjustment or repair is necessary because of such shipment, you may perform the necessary adjustment or repair only after the initial test of the locomotive, unless we determine that the test would be impossible to perform or would permanently damage the locomotive.

(f) Malfunctions. If a locomotive cannot complete the service accumulation or an emission test because of a malfunction, you may request that we authorize either the repair of that locomotive or its deletion from the test sequence.

(g) Retesting. If you determine that any production line emission test of a locomotive is invalid, you must retest it in accordance with the requirements of this subpart. Report emission results from all tests to us, including test results you determined are invalid. You must also include a detailed explanation of the reasons for invalidating any test in the quarterly report required in § 1033.320(e). In the event a retest is performed, you may ask us within ten days of the end of the production quarter for permission to substitute the after-repair test results for the original test results. We will respond to the request within ten working days of our receipt of the request.

§ 1033.320Calculation and reporting of test results.

(a) Calculate initial test results using the applicable test procedure specified in § 1033.315(a). Include applicable non-deterioration adjustments such as a Green Engine Factor or regeneration adjustment factor. Round the results to one more decimal place than the applicable emission standard.

(b) If you conduct multiple tests on any locomotives, calculate final test results by summing the initial test results derived in paragraph (a) of this section for each test locomotive, dividing by the number of tests conducted on the locomotive, and rounding to one more decimal place than the applicable emission standard. For catalyst-equipped locomotives, you may ask us to allow you to exclude an initial failed test if all of the following are true:

(1) The catalyst was in a green condition when tested initially.

(2) The locomotive met all emission standards when retested after degreening the catalyst.

(3) No additional emission-related maintenance or repair was performed between the initial failed test and the subsequent passing test.

(c) Calculate the final test results for each test locomotive by applying the appropriate deterioration factors, derived in the certification process for the engine family, to the final test results, and rounding to one more decimal place than the applicable emission standard.

(d) If, subsequent to an initial failure of a production line test, the average of the test results for the failed locomotive and the two additional locomotives tested, is greater than any applicable emission standard or FEL, the engine family is deemed to be in non-compliance with applicable emission standards, and you must notify us within ten working days of such noncompliance.

(e) Within 45 calendar days of the end of each quarter, you must send to the Designated Compliance Officer a report with the following information:

(1) The location and description of the emission test facilities which you used to conduct your testing.

(2) Total production and sample size for each engine family tested.

(3) The applicable standards against which each engine family was tested.

(4) For each test conducted, include all of the following:

(i) A description of the test locomotive, including:

(A) Configuration and engine family identification.

(B) Year, make, and build date.

(C) Engine identification number.

(D) Number of megawatt-hours (or miles if applicable) of service accumulated on locomotive prior to testing.

(E) Description of Green Engine Factor; how it is determined and how it is applied.

(ii) Location(s) where service accumulation was conducted and description of accumulation procedure and schedule, if applicable. If the locomotive was introduced into service between assembly and testing, you are only required to summarize the service accumulation, rather than identifying specific locations.

(iii) Test number, date, test procedure used, initial test results before and after rounding, and final test results for all production line emission tests conducted, whether valid or invalid, and the reason for invalidation of any test results, if applicable.

(iv) A complete description of any adjustment, modification, repair, preparation, maintenance, and testing which was performed on the test locomotive, has not been reported pursuant to any other paragraph of this subpart, and will not be performed on other production locomotives.

(v) Any other information we may ask you to add to your written report so we can determine whether your new engines conform with the requirements of this part.

(6) For each failed locomotive as defined in § 1033.330(a), a description of the remedy and test results for all retests as required by § 1033.340(g).

(7) The following signed statement and endorsement by an authorized representative of your company:

We submit this report under sections 208 and 213 of the Clean Air Act. Our production-line testing conformed completely with the requirements of 40 CFR part 1033. We have not changed production processes or quality-control procedures for the test locomotives in a way that might affect emission controls. All the information in this report is true and accurate to the best of my knowledge. I know of the penalties for violating the Clean Air Act and the regulations. (Authorized Company Representative)

§ 1033.325Maintenance of records; submittal of information.

(a) You must establish, maintain, and retain the following adequately organized and indexed test records:

(1) A description of all equipment used to test locomotives. The equipment requirements in subpart F of this part apply to tests performed under this subpart. Maintain these records for each test cell that can be used to perform emission testing under this subpart.

(2) Individual test records for each production line test or audit including:

(i) The date, time, and location of each test or audit.

(ii) The method by which the Green Engine Factor was calculated or the number of hours of service accumulated on the test locomotive when the test began and ended.

(iii) The names of all supervisory personnel involved in the conduct of the production line test or audit;

(iv) A record and description of any adjustment, repair, preparation or modification performed on test locomotives, giving the date, associated time, justification, name(s) of the authorizing personnel, and names of all supervisory personnel responsible for the conduct of the action.

(v) If applicable, the date the locomotive was shipped from the assembly plant, associated storage facility or port facility, and the date the locomotive was received at the testing facility.

(vi) A complete record of all emission tests or audits performed under this subpart (except tests performed directly by us), including all individual worksheets and/or other documentation relating to each test, or exact copies thereof, according to the record requirements specified in subpart F of this part and 40 CFR part 1065.

(vii) A brief description of any significant events during testing not otherwise described under this paragraph (a)(2), commencing with the test locomotive selection process and including such extraordinary events as engine damage during shipment.

(b) Keep all records required to be maintained under this subpart for a period of eight years after completion of all testing. Store these records in any format and on any media, as long as you can promptly provide to us organized, written records in English if we ask for them and all the information is retained.

(c) Send us the following information with regard to locomotive production if we ask for it:

(1) Projected production for each configuration within each engine family for which certification has been requested and/or approved.

(2) Number of locomotives, by configuration and assembly plant, scheduled for production.

(d) Nothing in this section limits our authority to require you to establish, maintain, keep or submit to us information not specified by this section. We may also ask you to send less information.

(e) Send all reports, submissions, notifications, and requests for approval made under this subpart to the Designated Compliance Officer using an approved format.

There are two types of potential failures: failure of an individual locomotive to comply with the standards, and a failure of an engine family to comply with the standards.

(a) A failed locomotive is one whose final test results pursuant to § 1033.320(c), for one or more of the applicable pollutants, exceed an applicable emission standard or FEL.

(b) An engine family is deemed to be in noncompliance, for purposes of this subpart, if at any time throughout the model year, the average of an initial failed locomotive and the two additional locomotives tested, is greater than any applicable emission standard or FEL.

The section specifies the requirements for certifying remanufacturers to audit the remanufacture of locomotives covered by their certificates of conformity for proper components, component settings and component installations on randomly chosen locomotives in an engine family.

(a) You must ensure that all emission related components are properly installed on the locomotive and are set to the proper specification as indicated in your instructions. You may submit audits performed by the owners/operators of the locomotives, provided the audits are performed in accordance with the provisions of this section. We may require that you obtain affidavits for audits performed by owners/operators.

(b) Audit at least five percent of your annual production per model year per installer or ten per engine family per installer, whichever is less. You must perform more audits if there are any failures. Randomly select the locomotives to be audited after the remanufacture is complete. We may allow you to select locomotives prior to the completion of the remanufacture, if the preselection would not have the potential to affect the manner in which the locomotive was remanufactured (e.g., where the installer is not aware of the selection prior to the completion of the remanufacture). Unless we specify otherwise, you are not required to audit installers that remanufacture fewer than 10 locomotives per year under your certificates (combined for all of your engine families).

(c) The audit should be completed as soon as is practical after the remanufacture is complete. In no case may the remanufactured locomotive accumulate more than 45,000 miles prior to an audit.

(d) A locomotive fails if any emission related components are found to be improperly installed, improperly adjusted or incorrectly used.

(e) If a remanufactured locomotive fails an audit, then you must audit two additional locomotives from the next ten remanufactured in that engine family by that installer.

(f) An engine family is determined to have failed an audit, if at any time during the model year, you determine that the three locomotives audited are found to have had any improperly installed, improperly adjusted or incorrectly used components. You must notify us within 2 working days of a determination of an engine family audit failure.

(g) Within 45 calendar days of the end of each quarter, the remanufacturer must send the Designated Compliance Officer a report which includes the following information:

(1) The location and description of your audit facilities which were utilized to conduct auditing reported pursuant to this section;

(2) Total production and sample size for each engine family;

(3) The applicable standards and/or FELs against which each engine family was audited;

(4) For each audit conducted:

(i) A description of the audited locomotive, including:

(A) Configuration and engine family identification;

(B) Year, make, build date, and remanufacture date; and

(C) Locomotive and engine identification numbers;

(ii) Any other information we request relevant to the determination whether the new locomotives being remanufactured do in fact conform with the regulations with respect to which the certificate of conformity was issued;

(5) For each failed locomotive as defined in paragraph (d) of this section, a description of the remedy as required by § 1033.340(g);

(6) The following signed statement and endorsement by your authorized representative:

We submit this report under sections 208 and 213 of the Clean Air Act. Our production-line auditing conformed completely with the requirements of 40 CFR part 1033. We have not changed production processes or quality-control procedures for the audited locomotives in a way that might affect emission controls. All the information in this report is true and accurate to the best of my knowledge. I know of the penalties for violating the Clean Air Act and the regulations. (Authorized Company Representative)

(a) A certificate can be suspended for an individual locomotive as follows:

(1) The certificate of conformity is automatically suspended for any locomotive that fails a production line test pursuant to § 1033.330(a), effective from the time the testing of that locomotive is completed.

(2) The certificate of conformity is automatically suspended for any locomotive that fails an audit pursuant to § 1033.335(d), effective from the time that auditing of that locomotive is completed.

(b) A certificate can be suspended for an engine family as follows:

(1) We may suspend the certificate of conformity for an engine family that is in noncompliance pursuant to § 1033.330(b), thirty days after the engine family is deemed to be in noncompliance.

(2) We may suspend the certificate of conformity for an engine family that is determined to have failed an audit pursuant to § 1033.335(f). This suspension will not occur before thirty days after the engine family is deemed to be in noncompliance.

(c) If we suspend your certificate of conformity for an engine family, the suspension may apply to all facilities producing engines from an engine family, even if you find noncompliant engines only at one facility.

(d) We may revoke a certificate of conformity for any engine family in whole or in part if:

(1) You fail to comply with any of the requirements of this subpart.

(2) You submit false or incomplete information in any report or information provided to us under this subpart.

(3) You render inaccurate any test data submitted under this subpart.

(4) An EPA enforcement officer is denied the opportunity to conduct activities authorized in this subpart.

(5) An EPA enforcement officer is unable to conduct authorized activities for any reason.

(e) We will notify you in writing of any suspension or revocation of a certificate of conformity in whole or in part; a suspension or revocation is effective upon receipt of such notification or thirty days from the time a locomotive or engine family is deemed to be in noncompliance under §§ 1033.320(d), 1033.330(a), 1033.330(b), or 1033.335(f) is made, whichever is earlier, except that the certificate is immediately suspended with respect to any failed locomotives as provided for in paragraph (a) of this section.

(f) We may revoke a certificate of conformity for an engine family when the certificate has been suspended under paragraph (b) or (c) of this section if the remedy is one requiring a design change or changes to the locomotive, engine and/or emission control system as described in the application for certification of the affected engine family.

(g) Once a certificate has been suspended for a failed locomotive, as provided for in paragraph (a) of this section, you must take all the following actions before the certificate is reinstated for that failed locomotive:

(1) Remedy the nonconformity.

(2) Demonstrate that the locomotive conforms to applicable standards or family emission limits by retesting, or reauditing if applicable, the locomotive in accordance with this part.

(3) Submit a written report to us after successful completion of testing (or auditing, if applicable) on the failed locomotive, which contains a description of the remedy and testing (or auditing) results for each locomotive in addition to other information that may be required by this part.

(h) Once a certificate for a failed engine family has been suspended pursuant to paragraph (b) or (c) of this section, you must take the following actions before we will consider reinstating the certificate:

(1) Submit a written report to us identifying the reason for the noncompliance of the locomotives, describing the remedy, including a description of any quality control measures you will use to prevent future occurrences of the problem, and stating the date on which the remedies will be implemented.

(2) Demonstrate that the engine family for which the certificate of conformity has been suspended does in fact comply with the regulations of this part by testing (or auditing) locomotives selected from normal production runs of that engine family. Such testing (or auditing) must comply with the provisions of this subpart. If you elect to continue testing (or auditing) individual locomotives after suspension of a certificate, the certificate is reinstated for any locomotive actually determined to be in conformance with the applicable standards or family emission limits through testing (or auditing) in accordance with the applicable test procedures, provided that we have not revoked the certificate under paragraph (f) of this section.

(i) If the certificate has been revoked for an engine family, you must take the following actions before we will issue a certificate that would allow you to continue introduction into commerce of a modified version of that family:

(1) If we determine that the change(s) in locomotive design may have an effect on emission deterioration, we will notify you within five working days after receipt of the report in paragraph (h) of this section, whether subsequent testing/auditing under this subpart will be sufficient to evaluate the change(s) or whether additional testing (or auditing) will be required.

(2) After implementing the change or changes intended to remedy the nonconformity, you must demonstrate that the modified engine family does in fact conform with the regulations of this part by testing locomotives (or auditing for remanufactured locomotives) selected from normal production runs of that engine family. When both of these requirements are met, we will reissue the certificate or issue a new certificate. If this subsequent testing (or auditing) reveals failing data the revocation remains in effect.

(j) At any time subsequent to an initial suspension of a certificate of conformity for a test or audit locomotive pursuant to paragraph (a) of this section, but not later than 30 days (or such other period as may we allow) after the notification our decision to suspend or revoke a certificate of conformity in whole or in part pursuant to this section, you may request a hearing as to whether the tests or audits have been properly conducted or any sampling methods have been properly applied. (See § 1033.920.)

(k) Any suspension of a certificate of conformity under paragraphs (a) through (d) of this section will be made only after you have been offered an opportunity for a hearing conducted in accordance with § 1033.920. It will not apply to locomotives no longer in your possession.

(l) If we suspend, revoke, or void a certificate of conformity, and you believe that our decision was based on erroneous information, you may ask us to reconsider our decision before requesting a hearing. If you demonstrate to our satisfaction that our decision was based on erroneous information, we will reinstate the certificate.

(m) We may conditionally reinstate the certificate for that family so that you do not have to store non-test locomotives while conducting subsequent testing or auditing of the noncomplying family subject to the following condition: you must commit to recall all locomotives of that family produced from the time the certificate is conditionally reinstated if the family fails subsequent testing, or auditing if applicable, and must commit to remedy any nonconformity at no expense to the owner.

Subpart E—In-use Testing§ 1033.401Applicability.

The requirements of this subpart are applicable to certificate holders for locomotives subject to the provisions of this part. These requirements may also be applied to other manufacturers/remanufacturers as specified in § 1033.1(d).

§ 1033.405General provisions.

(a) Each year, we will identify engine families and configurations within families that you must test according to the requirements of this section.

(1) We may require you to test one engine family each year for which you have received a certificate of conformity. If you are a manufacturer that holds certificates of conformity for both freshly manufactured and remanufactured locomotive engine families, we may require you to test one freshly manufactured engine family and one remanufactured engine family. We may require you to test additional engine families if we have reason to believe that locomotives in such families do not comply with emission standards in use.

(2) For engine families of less than 10 locomotives per year, no in-use testing will be required, unless we have reason to believe that those engine families are not complying with the applicable emission standards in use.

(b) Test a sample of in-use locomotives from an engine family, as specified in § 1033.415. We will use these data, and any other data available to us, to determine the compliance status of classes of locomotives, including for purposes of recall under 40 CFR part 1068, and whether remedial action is appropriate.

§ 1033.410In-use test procedure.

(a) You must test the complete locomotives; you may not test engines that are not installed in locomotives at the time of testing.

(b) Test the locomotive according to the test procedures outlined in subpart F of this part, except as provided in this section.

(c) Use the same test procedures for in-use testing as were used for certification, except for cases in which certification testing was not conducted with a locomotive, but with a development engine or other engine. In such cases, we will specify deviations from the certification test procedures as appropriate. We may allow or require other alternate procedures, with advance approval.

(d) Set all adjustable locomotive or engine parameters to values or positions that are within the range specified in the certificate of conformity. We may require you to set these parameters to specific values.

(e) We may waive a portion of the applicable test procedure that is not necessary to determine in-use compliance.

§ 1033.415General testing requirements.

(a) Number of locomotives to be tested. Determine the number of locomotives to be tested by the following method:

(1) Test a minimum of 2 locomotives per engine family, except as provided in paragraph (a)(2) of this section. You must test additional locomotives if any locomotives fail to meet any standard. Test 2 more locomotives for each failing locomotive, but stop testing if the total number of locomotives tested equals 10.

(2) If an engine family has been certified using carryover emission data from a family that has been previously tested under paragraph (a)(1) of this section (and we have not ordered or begun to negotiate remedial action of that family), you need to test only one locomotive per engine family. If that locomotive fails to meet applicable standards for any pollutant, testing for that engine family must be conducted as outlined under paragraph (a)(1) of this section.

(3) You may ask us to allow you to test more locomotives than the minimum number described above or you may concede failure before testing 10 locomotives.

(b) Compliance criteria. We will consider failure rates, average emission levels and the existence of any defects among other factors in determining whether to pursue remedial action. We may order a recall pursuant to 40 CFR part 1068 before testing reaches the tenth locomotive.

(c) Collection of in-use locomotives. Procure in-use locomotives that have been operated for 50 to 75 percent of the locomotive's useful life for testing under this subpart. Complete testing required by this section for any engine family before useful life of the locomotives in the engine family passes. (Note: § 1033.820 specifies that railroads must make reasonable efforts to enable you to perform this testing.)

§ 1033.420Maintenance, procurement and testing of in-use locomotives.

(a) A test locomotive must have a maintenance history that is representative of actual in-use conditions, and identical or equivalent to your recommended emission-related maintenance requirements.

(1) When procuring locomotives for in-use testing, ask the end users about the accumulated usage, maintenance, operating conditions, and storage of the test locomotives.

(2) Your selection of test locomotives is subject to our approval. Maintain the information you used to procure locomotives for in-use testing in the same manner as is required in § 1033.250.

(b) You may perform minimal set-to-spec maintenance on a test locomotive before conducting in-use testing. Maintenance may include only that which is listed in the owner's instructions for locomotives with the amount of service and age of the acquired test locomotive. Maintain documentation of all maintenance and adjustments.

(c) If the locomotive selected for testing is equipped with emission diagnostics meeting the requirements in § 1033.110 and the MIL is illuminated, you may read the code and repair the malfunction according to your emission-related maintenance instructions, but only to the degree that an owner/operator would be required to repair the malfunction under § 1033.815.

(d) Results of at least one valid set of emission tests using the test procedure described in subpart F of this part is required for each in-use locomotive.

(e) If in-use testing results show that an in-use locomotive fails to comply with any applicable emission standards, you must determine the reason for noncompliance and report your findings in the quarterly in-use test result report described in § 1033.425.

§ 1033.425In-use test program reporting requirements.

(a) Within 90 days of completion of testing, send us all emission test results generated from the in-use testing program. Report all of the following information for each locomotive tested:

(1) Engine family, and configuration.

(2) Locomotive and engine models.

(3) Locomotive and engine serial numbers.

(4) Date of manufacture or remanufacture, as applicable.

(5) Megawatt-hours of use (or miles, as applicable).

(6) Date and time of each test attempt.

(7) Results of all emission testing.

(8) Results (if any) of each voided or failed test attempt.

(9) Summary of all maintenance and/or adjustments performed.

(10) Summary of all modifications and/or repairs.

(11) Determinations of noncompliance.

(12) The following signed statement and endorsement by an authorized representative of your company.

We submit this report under sections 208 and 213 of the Clean Air Act. Our in-use testing conformed completely with the requirements of 40 CFR part 1033. All the information in this report is true and accurate to the best of my knowledge. I know of the penalties for violating the Clean Air Act and the regulations. (Authorized Company Representative)

(b) Report to us within 90 days of completion of testing the following information for each engine family tested:

(1) The serial numbers of all locomotive that were excluded from the test sample because they did not meet the maintenance requirements of § 1033.420.

(2) The owner of each locomotive identified in paragraph (b)(1) of this section (or other entity responsible for the maintenance of the locomotive).

(3) The specific reasons why the locomotives were excluded from the test sample.

(c) Submit the information outlined in paragraphs (a) and (b) of this section electronically using an approved format. We may exempt you from this requirement upon written request with supporting justification.

(d) Send all testing reports and requests for approvals to the Designated Compliance Officer.

Subpart F—Test Procedures§ 1033.501General provisions.

(a) Except as specified in this subpart, use the equipment and procedures for compression-ignition engines in 40 CFR part 1065 to determine whether your locomotives meet the duty-cycle emission standards in § 1033.101. Use the applicable duty cycles specified in this subpart. Measure emissions of all the pollutants we regulate in § 1033.101 plus CO2. Measure N2O, and CH4 as described in § 1033.235. The general test procedure is the procedure specified in 40 CFR part 1065 for steady-state discrete-mode cycles. However, if you use the optional ramped modal cycle in § 1033.520, follow the procedures for ramped modal testing in 40 CFR part 1065. The following exceptions from the 1065 procedures apply:

(1) You must average power and emissions over the sampling periods specified in this subpart for both discrete-mode testing and ramped modal testing.

(2) The test cycle is considered to be steady-state with respect to operator demand rather than engine speed and load.

(3) The provisions related to engine mapping and duty cycle generation (40 CFR 1065.510 and 1065.512) are not applicable to testing of complete locomotives or locomotive engines because locomotive operation and locomotive duty cycles are based on operator demand via locomotive notch settings rather than engine speeds and loads. The cycle validation criteria (40 CFR 1065.514) are not applicable to testing of complete locomotives but do apply for dynamometer testing of engines.

(b) You may use special or alternate procedures to the extent we allow as them under 40 CFR 1065.10. In some cases, we allow you to use procedures that are less precise or less accurate than the specified procedures if they do not affect your ability to show that your locomotives comply with the applicable emission standards. This generally requires emission levels to be far enough below the applicable emission standards so that any errors caused by greater imprecision or inaccuracy do not affect your ability to state unconditionally that the locomotives meet all applicable emission standards.

(c) This part allows (with certain limits) testing of either a complete locomotive or a separate uninstalled engine. When testing a locomotive, you must test the complete locomotive in its in-use configuration, except that you may disconnect the power output and fuel input for the purpose of testing. To calculate power from measured alternator/generator output, use an alternator/generator efficiency curve that varies with speed/load, consistent with good engineering judgment.

(d) Unless smoke standards do not apply for your locomotives or the testing requirement is waived, measure smoke emissions using the procedures in § 1033.525.

(1) For diesel-fueled locomotives, use the appropriate diesel fuel specified in 40 CFR part 1065, subpart H, for emission testing. The applicable diesel test fuel is either the ultra low-sulfur diesel or low-sulfur diesel fuel, as specified in § 1033.101. Identify the test fuel in your application for certification and ensure that the fuel inlet label is consistent with your selection of the test fuel (see §§ 1033.101 and 1033.135).

(2) You may ask to use as a test fuel commercially available diesel fuel similar but not identical to the applicable fuel specified in 40 CFR part 1065, subpart H; we will approve your request if you show us that it does not affect your ability to demonstrate compliance with the applicable emission standards. If your locomotive uses sulfur-sensitive technology, you may not use an in-use fuel that has a lower sulfur content than the range specified for the otherwise applicable test fuel in 40 CFR part 1065. If your locomotive does not use sulfur-sensitive technology, we may allow you to use an in-use fuel that has a lower sulfur content than the range specified for the otherwise applicable test fuel in 40 CFR part 1065, but may require that you correct PM emissions to account for the sulfur differences.

(3) For service accumulation, use the test fuel or any commercially available fuel that is representative of the fuel that in-use locomotives will use.

(f) See § 1033.505 for information about allowable ambient testing conditions for testing.

(g) This subpart is addressed to you as a manufacturer/remanufacturer, but it applies equally to anyone who does testing for you, and to us when we perform testing to determine if your locomotives meet emission standards.

(h) We may also perform other testing as allowed by the Clean Air Act.

(i) For passenger locomotives that can generate hotel power from the main propulsion engine, the locomotive must comply with the emission standards when in non-hotel setting. For hotel mode, the locomotive is subject to the notch cap provisions of § 1033.101 and the defeat device prohibition of § 1033.115.

This section specifies the allowable ambient conditions (including temperature and pressure) under which testing may be performed to determine compliance with the emission standards of § 1068.101. Manufacturers/remanufacturers may ask to perform testing at conditions other than those allowed by this section. We will allow such testing provided it does not affect your ability to demonstrate compliance with the applicable standards. See §§ 1033.101 and 1033.115 for more information about the requirements that apply at other conditions.

(a) Temperature. (1) Testing may be performed with ambient temperatures from 15.5 °C (60 °F) to 40.5 °C (105 °F). Do not correct emissions for temperature effects within this range.

(2) It is presumed that combustion air will be drawn from the ambient air. Thus, the ambient temperature limits of this paragraph (a) apply for intake air upstream of the engine. If you do not draw combustion air from the ambient air, use good engineering judgment to ensure that any temperature difference (between the ambient air and combustion air) does not cause the emission measurement to be unrepresentative of in-use emissions.

(3) If we allow you to perform testing at ambient temperatures below 15.5 °C, you must correct NOX emissions for temperature effects, consistent with good engineering judgment. For example, if the intake air temperature (at the manifold) is lower at the test temperature than it would be for equivalent operation at an ambient temperature of 15.5 °C, you generally will need to adjust your measured NOX emissions to account for the effect of the lower intake air temperature. However, if you maintain a constant manifold air temperature, you will generally not need to correct emissions.

(b) Altitude/pressure. Testing may be performed with ambient pressures from 88.000 kPa (26.0 in Hg) to 103.325 kPa (30.5 in Hg). This is intended to correspond to altitudes up to 4000 feet above sea level. Do not correct emissions for pressure effects within this range.

(c) Humidity. Testing may be performed with any ambient humidity level. Correct NOX emissions as specified in 40 CFR 1065.670. Do not correct any other emissions for humidity effects.

(d) Wind. If you test outdoors, use good engineering judgment to ensure that excessive wind does not affect your emission measurements. Winds are excessive if they disturb the size, shape, or location of the exhaust plume in the region where exhaust samples are drawn or where the smoke plume is measured, or otherwise cause any dilution of the exhaust. Tests may be conducted if wind shielding is placed adjacent to the exhaust plume to prevent bending, dispersion, or any other distortion of the exhaust plume as it passes through the optical unit or through the sample probe.

If your locomotive is equipped with an auxiliary power unit (APU) that operates during an idle shutdown mode, you must account for the APU's emissions rates as specified in this section, unless the APU is part of an AESS system that was certified separately from the rest of the locomotive. This section does not apply for auxiliary engines that only provide hotel power.

(a) Adjust the locomotive main engine's idle emission rate (g/hr) as specified in § 1033.530. Add the APU emission rate (g/hr) that you determine under paragraph (b) of this section. Use the locomotive main engine's idle power as specified in § 1033.530.

(b) Determine the representative emission rate for the APU using one of the following methods.

(1) Installed APU tested separately. If you separately measure emission rates (g/hr) for each pollutant from the APU installed in the locomotive, you may use the measured emissions rates (g/hr) as the locomotive's idle emissions rates when the locomotive is shutdown and the APU is operating. For all testing other than in-use testing, apply appropriate deterioration factors to the measured emission rates. You may ask to carryover APU emission data for a previous test, or use data for the same APU installed on locomotives in another engine family.

(2) Uninstalled APU tested separately. If you separately measure emission rates (g/hr) over an appropriate duty-cycle for each pollutant from the APU when it is not installed in the locomotive, you may use the measured emissions rates (g/hr) as the locomotive's idle emissions rates when the locomotive is shutdown and the APU is operating. For the purpose of this paragraph (b)(2), an appropriate duty-cycle is one that approximates the APU engine's cycle-weighted power when operating in the locomotive. Apply appropriate deterioration factors to the measured emission rates. You may ask to carryover APU emission data for a previous test, or use data for the same APU installed on locomotives in another engine family.

(3) APU engine certification data. If the engine used for the APU has been certified to EPA emission standards you may calculate the APU's emissions based upon existing EPA-certification information about the APU's engine. In this case, calculate the APU's emissions as follows:

(i) For each pollutant determine the brake-specific standard/FEL to which the APU engine was originally EPA-certified.

(ii) Determine the APU engine's cycle-weighted power when operating in the locomotive.

(iii) Multiply each of the APU's applicable brake-specific standards/FELs by the APU engine's cycle-weighted power. The results are the APU's emissions rates (in g/hr).

(iv) Use these emissions rates as the locomotive's idle emissions rates when the locomotive is shutdown and the APU is running. Do not apply a deterioration factor to these values.

(4) Other. You may ask us to approve an alternative means to account for APU emissions.

This section describes how to test locomotives at each notch setting so that emissions can be weighted according to either the line-haul duty cycle or the switch duty cycle. The locomotive test cycle consists of a warm-up followed by a sequence of nominally steady-state discrete test modes, as described in Table 1 to this section. The test modes are steady-state with respect to operator demand, which is the notch setting for the locomotive. Engine speeds and loads are not necessarily steady-state.

(a) Follow the provisions of 40 CFR part 1065, subpart F for general pre-test procedures (including engine and sampling system pre-conditioning which is included as engine warm-up). You may operate the engine in any way you choose to warm it up prior to beginning the sample preconditioning specified in 40 CFR part 1065.

(b) Begin the test by operating the locomotive over the pre-test portion of the cycle specified in Table 1 to this section. For locomotives not equipped with catalysts, you may begin the test as soon as the engine reaches its lowest idle setting. For catalyst-equipped locomotives, you may begin the test in normal idle mode if the engine does not reach its lowest idle setting within 15 minutes. If you do start in normal idle, run the low idle mode after normal idle, then resume the specified mode sequence (without repeating the normal idle mode).

(c) Measure emissions during the rest of the test cycle.

(1) Each test mode begins when the operator demand to the locomotive or engine is set to the applicable notch setting.

(2) Start measuring gaseous emissions, power, and fuel consumption at the start of the test mode A and continue until the completion of test mode 8. You may zero and span analyzers between modes (or take other actions consistent with good engineering judgment).

(i) The sample period over which emissions for the mode are averaged generally begins when the operator demand is changed to start the test mode and ends within 5 seconds of the minimum sampling time for the test mode is reached. However, you need to shift the sampling period to account for sample system residence times. Follow the provisions of 40 CFR 1065.308 and 1065.309 to time align emission and work measurements.

(ii) The sample period is 300 seconds for all test modes except mode 10. The sample period for test mode 8 is 600 seconds.

(3) If gaseous emissions are sampled using a batch-sampling method, begin proportional sampling at the beginning of each sampling period and terminate sampling once the minimum time in each test mode is reached, ± 5 seconds.

(4) If applicable, begin the smoke test at the start of the test mode A. Continue collecting smoke data until the completion of test mode 8. Refer to § 1033.101 to determine applicability of smoke testing and § 1033.525 for details on how to conduct a smoke test.

(5) Begin proportional sampling of PM emissions at the beginning of each sampling period and terminate sampling within ± 5 seconds of the specified time in each test mode. If the PM sample is not sufficiently large, take one of the following actions consistent with good engineering judgment:

(i) Extend the sampling period up to a maximum of 15 minutes.

(ii) Group the modes in the same manner as the phases of the ramped modal cycle and use three different dilution settings for the groups. Use one setting for both idle modes, one for dynamic brake through notch 5, and one for notches 6 through 8. For each group, ensure that the mode with the highest exhaust flow (typically normal idle, notch 5, and notch 8) meets the criteria for minimum dilution ratio in 40 CFR part 1065.

(6) Proceed through each test mode in the order specified in Table 1 to this section until the locomotive test cycle is completed.

(7) At the end of each numbered test mode, you may continue to operate sampling and dilution systems to allow corrections for the sampling system's response time.

(8) Following the completion of Mode 8, conduct the post sampling procedures in § 1065.530. Note that cycle validation criteria do not apply to testing of complete locomotives.

(d) Use one of the following approaches for sampling PM emissions during discrete-mode steady-state testing:

(1) Engines certified to a PM standard/FEL at or above 0.05 g/bhp-hr. Use a separate PM filter sample for each test mode of the locomotive test cycle according to the procedures specified in paragraph (a) through (c) of this section. You may ask to use a shorter sampling period if the total mass expected to be collected would cause unacceptably high pressure drop across the filter before reaching the end of the required sampling time. We will not allow sampling times shorter than 60 seconds. When we conduct locomotive emission tests, we will adhere to the time limits for each of the numbered modes in Table 1 to this section.

(2) Engines certified to a PM standard/FEL below 0.05 g/bhp-hr. (i) You may use separate PM filter samples for each test mode as described in paragraph (d)(1) of this section; however, we recommend that you do not. The low rate of sample filter loading will result in very long sampling times and the large number of filter samples may induce uncertainty stack-up that will lead to unacceptable PM measurement accuracy. Instead, we recommend that you measure PM emissions as specified in paragraph (d)(2)(ii) of this section.

(ii) You may use a single PM filter for sampling PM over all of the test modes of the locomotive test cycle as specified in this paragraph (d)(2). Vary the sample time to be proportional to the applicable line-haul or switch weighting factors specified in § 1033.530 for each mode. The minimum sampling time for each mode is 400 seconds multiplied by the weighting factor. For example, for a mode with a weighting factor of 0.030, the minimum sampling time is 12.0 seconds. PM sampling in each mode must be proportional to engine exhaust flow as specified in 40 CFR part 1065. Begin proportional sampling of PM emissions at the beginning of each test mode as is specified in paragraph (c) of this section. End the sampling period for each test mode so that sampling times are proportional to the weighting factors for the applicable duty cycles. If necessary, you may extend the time limit for each of the test modes beyond the sampling times in Table 1 to this section to increase the sampled mass of PM emissions or to account for proper weighting of the PM emission sample over the entire cycle, using good engineering judgment.

(e) This paragraph (e) describes how to test locomotive engines when not installed in a locomotive. Note that the test procedures for dynamometer engine testing of locomotive engines are intended to produce emission measurements that are the same as emission measurements produced during testing of complete locomotives using the same engine configuration. The following requirements apply for all engine tests:

(1) Specify a second-by-second set of engine speed and load points that are representative of in-use locomotive operation for each of the set-points of the locomotive test cycle described in Table 1 to this section, including transitions from one notch to the next. This is your reference cycle for validating your cycle. You may ignore points between the end of the sampling period for one mode and the point at which you change the notch setting to begin the next mode.

(2) Keep the temperature of the air entering the engine after any charge air cooling to within 5 °C of the typical intake manifold air temperature when the engine is operated in the locomotive under similar ambient conditions.

(3) Proceed as specified in paragraphs (a) through (d) of this section for testing complete locomotives.

(a) Locomotive testing over a ramped modal cycle is intended to improve measurement accuracy at low emission levels by allowing the use of batch sampling of PM and gaseous emissions over multiple locomotive notch settings. Ramped modal cycles combine multiple test modes of a discrete-mode steady-state into a single sample period. Time in notch is varied to be proportional to weighting factors. The ramped modal cycle for line-haul locomotives is shown in Table 1 to this section. The ramped modal cycle for switch locomotives is shown in Table 2 to this section. Both ramped modal cycles consist of a warm-up followed by three test phases that are each weighted in a manner that maintains the duty cycle weighting of the line-haul and switch locomotive duty cycles in § 1033.530. You may use ramped modal cycle testing for any locomotives certified under this part.

(b) Ramped modal testing requires continuous gaseous analyzers and three separate PM filters (one for each phase). You may collect a single batch sample for each test phase, but you must also measure gaseous emissions continuously to allow calculation of notch caps as required under § 1033.101.

(c) You may operate the engine in any way you choose to warm it up. Then follow the provisions of 40 CFR part 1065, subpart F for general pre-test procedures (including engine and sampling system pre-conditioning).

(d) Begin the test by operating the locomotive over the pre-test portion of the cycle. For locomotives not equipped with catalysts, you may begin the test as soon as the engine reaches its lowest idle setting. For catalyst-equipped locomotives, you may begin the test in normal idle mode if the engine does not reach its lowest idle setting within 15 minutes. If you do start in normal idle, run the low idle mode after normal idle, then resume the specified mode sequence (without repeating the normal idle mode).

(e) Start the test according to 40 CFR 1065.530.

(1) Each test phase begins when operator demand is set to the first operator demand setting of each test phase of the ramped modal cycle. Each test phase ends when the time in mode is reached for the last mode in the test phase.

(2) For PM emissions (and other batch sampling), the sample period over which emissions for the phase are averaged generally begins within 10 seconds after the operator demand is changed to start the test phase and ends within 5 seconds of the sampling time for the test mode is reached. (see Table 1 to this section). You may ask to delay the start of the sample period to account for sample system residence times longer than 10 seconds.

(3) Use good engineering judgment when transitioning between phases.

(i) You should come as close as possible to simultaneously:

(A) Ending batch sampling of the previous phase.

(B) Starting batch sampling of the next phase.

(C) Changing the operator demand to the notch setting for the first mode in the next phase.

(ii) Avoid the following:

(A) Overlapping batch sampling of the two phases.

(B) An unnecessarily long delay before starting the next phase.

(iii) For example, the following sequence would generally be appropriate:

(A) End batch sampling for phase 2 after 240 seconds in notch 7.

(B) Switch the operator demand to notch 8 one second later.

(C) Begin batch sampling for phase 3 one second after switching to notch 8.

(4) If applicable, begin the smoke test at the start of the first test phase of the applicable ramped modal cycle. Continue collecting smoke data until the completion of final test phase. Refer to § 1033.101 to determine applicability of the smoke standards and § 1033.525 for details on how to conduct a smoke test.

(5) Proceed through each test phase of the applicable ramped modal cycle in the order specified until the test is completed.

(6) If you must void a test phase you may repeat the phase. To do so, begin with a warm engine operating at the notch setting for the last mode in the previous phase. You do not need to repeat later phases if they were valid. (Note: you must report test results for all voided tests and test phases.)

(7) Following the completion of the third test phase of the applicable ramped modal cycle, conduct the post sampling procedures specified in 40 CFR 1065.530.

This section describes the equipment and procedures for testing for smoke emissions when is required.

(a) This section specifies how to measure smoke emissions using a full-flow, open path light extinction smokemeter. A light extinction meter consists of a built-in light beam that traverses the exhaust smoke plume that issues from exhaust the duct. The light beam must be at right angles to the axis of the plume. Align the light beam to go through the plume along the hydraulic diameter (defined in 1065.1001) of the exhaust stack. Where it is difficult to align the beam to have a path length equal to the hydraulic diameter (such as a long narrow rectangular duct), you may align the beam to have a different path length and correct it to be equivalent to a path length equal to the hydraulic diameter. The light extinction meter must meet the requirements of paragraph (b) of this section and the following requirements:

(1) Use an incandescent light source with a color temperature range of 2800K to 3250K, or a light source with a spectral peak between 550 and 570 nanometers.

(2) Collimate the light beam to a nominal diameter of 3 centimeters and an angle of divergence within a 6 degree included angle.

(3) Use a photocell or photodiode light detector. If the light source is an incandescent lamp, use a detector that has a spectral response similar to the photopic curve of the human eye (a maximum response in the range of 550 to 570 nanometers, to less than four percent of that maximum response below 430 nanometers and above 680 nanometers).

(4) Attach a collimating tube to the detector with apertures equal to the beam diameter to restrict the viewing angle of the detector to within a 16 degree included angle.

(5) Amplify the detector signal corresponding to the amount of light.

(6) You may use an air curtain across the light source and detector window assemblies to minimize deposition of smoke particles on those surfaces, provided that it does not measurably affect the opacity of the plume.

(7) Minimize distance from the optical centerline to the exhaust outlet; in no case may it be more than 3.0 meters. The maximum allowable distance of unducted space upstream of the optical centerline is 0.5 meters. Center the full flow of the exhaust stream between the source and detector apertures (or windows and lenses) and on the axis of the light beam.

(8) You may use light extinction meters employing substantially identical measurement principles and producing substantially equivalent results, but which employ other electronic and optical techniques.

(b) All smokemeters must meet the following specifications:

(1) A full-scale deflection response time of 0.5 second or less.

(2) You may attenuate signal responses with frequencies higher than 10 Hz with a separate low-pass electronic filter with the following performance characteristics:

(i) Three decibel point: 10 Hz.

(ii) Insertion loss: 0.0 ± 0.5 dB.

(iii) Selectivity: 12 dB down at 40 Hz minimum.

(iv) Attenuation: 27 dB down at 40 Hz minimum.

(c) Perform the smoke test by continuously recording smokemeter response over the entire locomotive test cycle in percent opacity to within one percent resolution and also simultaneously record operator demand set point (e.g., notch position). Compare the recorded opacities to the smoke standards applicable to your locomotive.

(d) You may use a partial flow sampling smokemeter if you correct for the path length of your exhaust plume. If you use a partial flow sampling meter, follow the instrument manufacturer's installation, calibration, operation, and maintenance procedures.

§ 1033.530Duty cycles and calculations.

This section describes how to apply the duty cycle to measured emission rates to calculate cycle-weighted average emission rates.

(a) Standard duty cycles and calculations. Tables 1 and 2 of this section show the duty cycle to use to calculate cycle-weighted average emission rates for locomotives equipped with two idle settings, eight propulsion notches, and at least one dynamic brake notch and tested using the Locomotive Test Cycle. Use the appropriate weighting factors for your locomotive application and calculate cycle-weighted average emissions as specified in 40 CFR part 1065, subpart G.

(b) Idle and dynamic brake notches. The test procedures generally require you to measure emissions at two idle settings and one dynamic brake, as follows:

(1) If your locomotive is equipped with two idle settings and one or more dynamic brake settings, measure emissions at both idle settings and the worst case dynamic brake setting, and weight the emissions as specified in the applicable table of this section. Where it is not obvious which dynamic brake setting represents worst case, do one of the following:

(i) You may measure emissions and power at each dynamic brake point and average them together.

(ii) You may measure emissions and power at the dynamic brake point with the lowest power.

(2) If your locomotive is equipped with two idle settings and is not equipped with dynamic brake, use a normal idle weighting factor of 0.315 for the line-haul cycle. If your locomotive is equipped with only one idle setting and no dynamic brake, use an idle weighting factor of 0.505 for the line-haul cycle.

(c) Nonstandard notches or no notches. If your locomotive is equipped with more or less than 8 propulsion notches, recommend an alternate test cycle based on the in-use locomotive configuration. Unless you have data demonstrating that your locomotive will be operated differently from conventional locomotives, recommend weighting factors that are consistent with the power weightings of the specified duty cycle. For example, the average load factor for your recommended cycle (cycle-weighted power divided by rated power) should be equivalent to those of conventional locomotives. We may also allow the use of the standard power levels shown in Table 3 to this section for nonstandard locomotive testing subject to our prior approval. This paragraph (c) does not allow engines to be tested without consideration of the actual notches that will be used.

(d) Optional Ramped Modal Cycle Testing. Tables 1 and 2 of § 1033.520 show the weighting factors to use to calculate cycle-weighted average emission rates for the applicable locomotive ramped modal cycle. Use the weighting factors for the ramped modal cycle for your locomotive application and calculate cycle-weighted average emissions as specified in 40 CFR part 1065, subpart G.

(e) Automated Start-Stop. For a locomotive equipped with features that shut the engine off after prolonged periods of idle, multiply the measured idle mass emission rate over the idle portion of the applicable test cycles by a factor equal to one minus the estimated fraction reduction in idling time that will result in use from the shutdown feature. Do not apply this factor to the weighted idle power. Application of this adjustment is subject to our approval if the fraction reduction in idling time that is estimated to result from the shutdown feature is greater than 25 percent. This paragraph (e) does not apply if the locomotive is (or will be) covered by a separate certificate for idle control.

(f) Multi-engine locomotives. This paragraph (f) applies for locomotives using multiple engines where all engines are identical in all material respects. In cases where we allow engine dynamometer testing, you may test a single engine consistent with good engineering judgment, as long as you test it at the operating points at which the engines will operate when installed in the locomotive (excluding stopping and starting). Weigh the results to reflect the power demand/power-sharing of the in-use configuration for each notch setting.

(g) Representative test cycles for freshly manufactured locomotives. As specified in this paragraph (g), manufacturers may be required to use an alternate test cycle for freshly manufactured Tier 3 and later locomotives.

(1) If you determine that you are adding design features that will make the expected average in-use duty cycle for any of your freshly manufactured locomotive engine families significantly different from the otherwise applicable test cycle (including weighting factors), you must notify us and recommend an alternate test cycle that represents the expected average in-use duty cycle. You should also obtain preliminary approval before you begin collecting data to support an alternate test cycle. We will specify whether to use the default duty cycle, your recommended cycle, or a different cycle, depending on which cycle we believe best represents expected in-use operation.

(2) The provisions of this paragraph (g) apply differently for different types of locomotives, as follows:

(i) For Tier 4 and later line-haul locomotives, use the cycle required by (g)(1) of this section to show compliance with the line-haul cycle standards.

(ii) For Tier 3 and later switch locomotives, use the cycle required by (g)(1) of this section to show compliance with the switch cycle standards.

(iii) For Tier 3 line-haul locomotives, if we specify an alternate cycle, use it to show compliance with the line-haul cycle standards. If you include the locomotives in the ABT program of subpart H of this part, calculate line-haul cycle credits (positive or negative) using the alternate cycle and the line-haul cycle standards. Your locomotive is deemed to also generate an equal amount of switch cycle credits.

(3) For all locomotives certified using an alternate cycle, include a description of the cycle in the owners manual such that the locomotive can be remanufactured using the same cycle.

(4) For example, if your freshly manufactured line-haul locomotives are equipped with load control features that modify how the locomotive will operate when it is in a consist, and such features will cause the locomotives to operate differently from the otherwise applicable line-haul cycle, we may require you to certify using an alternate cycle.

(5) See paragraph (h) of this section for cycle-changing design features that also result in energy savings.

(h) Calculation adjustments for energy-saving design features. The provisions of this paragraph (h) apply for locomotives equipped with new energy-saving locomotive design features. They do not apply for features that only improve the engine's brake-specific fuel consumption. They also do not apply for features that were commonly incorporated in locomotives before 2008. See paragraph (h)(6) of this section for provisions related to determining whether certain features are considered to have been commonly incorporated in locomotives before 2008.

(1) Manufacturers/remanufacturers choosing to adjust emissions under this paragraph (h) must do all of the following for certification:

(i) Describe the energy-saving features in your application for certification.

(2) If your design feature will also affect the locomotives' duty cycle, you must comply with the requirements of paragraph (g) of this section.

(3) Calculate the energy savings as follows:

(i) Estimate the expected mean in-use fuel consumption rate (on a BTU per ton-mile basis) with and without the energy saving design feature, consistent with the specifications of paragraph (h)(4) of this section. The energy savings is the ratio of fuel consumed from a locomotive operating with the new feature to fuel consumed from a locomotive operating without the feature under identical conditions. Include an estimate of the 80 percent confidence interval for your estimate of the mean and other statistical parameters we specify.

(ii) Your estimate must be based on in-use operating data, consistent with good engineering judgment. Where we have previously certified your design feature under this paragraph (h), we may require you to update your analysis based on all new data that are available. You must obtain approval before you begin collecting operational data for this purpose.

(iii) We may allow you to consider the effects of your design feature separately for different route types, regions, or railroads. We may require that you certify these different locomotives in different engine families and may restrict their use to the specified applications.

(iv) Design your test plan so that the operation of the locomotives with and without is as similar as possible in all material aspects (other than the design feature being evaluated). Correct all data for any relevant differences, consistent with good engineering judgment.

(v) Do not include any brake-specific energy savings in your calculated values. If it is not possible to exclude such effects from your data gathering, you must correct for these effects, consistent with good engineering judgment.

(4) Calculate adjustment factors as described in this paragraph (h)(4). If the energy savings will apply broadly, calculate and apply the adjustment on a cycle-weighted basis. Otherwise, calculate and apply the adjustment separately for each notch. To apply the adjustment, multiply the emissions (either cycle-weighted or notch-specific, as applicable) by the adjustment. Use the lower bound of the 80 percent confidence interval of the estimate of the mean as your estimated energy savings rate. We may cap your energy savings rate for this paragraph (h)(4) at 80 percent of the estimate of the mean. Calculate the emission adjustment factors as:

AF = 1.000 − (energy savings rate)

(5) We may require you to collect and report data from locomotives we allow you to certify under this paragraph (h) and to recalculate the adjustment factor for future model years based on such data.

(6) Features that are considered to have not been commonly incorporated in locomotives before 2008 include but are not limited to those identified in this paragraph (h)(6).

(i) Electronically controlled pneumatic (ECP) brakes, computerized throttle management control, and advanced hybrid technology were not commonly incorporated in locomotives before 2008. Manufacturers may claim full credit for energy savings that result from applying these features to freshly manufactured and/or remanufactured locomotives.

(ii) Distributed power systems that use radio controls to optimize operation of locomotives in the middle and rear of a train were commonly incorporated in some but not all locomotives in 2008. Manufacturers may claim credit for incorporating these features into locomotives as follows:

This section describes how to adjust emission results from locomotives using aftertreatment technology with infrequent regeneration events that occur during testing. See paragraph (e) of this section for how to adjust ramped modal testing. See paragraph (f) of this section for how to adjust discrete-mode testing. For this section, “regeneration” means an intended event during which emission levels change while the system restores aftertreatment performance. For example, hydrocarbon emissions may increase temporarily while oxidizing accumulated particulate matter in a trap. Also for this section, “infrequent” refers to regeneration events that are expected to occur on average less than once per sample period.

(a) Developing adjustment factors. Develop an upward adjustment factor and a downward adjustment factor for each pollutant based on measured emission data and observed regeneration frequency. Adjustment factors should generally apply to an entire engine family, but you may develop separate adjustment factors for different configurations within an engine family. If you use adjustment factors for certification, you must identify the frequency factor, F, from paragraph (b) of this section in your application for certification and use the adjustment factors in all testing for that engine family. You may use carryover or carry-across data to establish adjustment factors for an engine family, as described in § 1033.235, consistent with good engineering judgment. All adjustment factors for regeneration are additive. Determine adjustment factors separately for different test segments as described in paragraphs (e) and (f) of this section. You may use either of the following different approaches for locomotives that use aftertreatment with infrequent regeneration events:

(1) You may disregard this section if you determine that regeneration does not significantly affect emission levels for an engine family (or configuration) or if it is not practical to identify when regeneration occurs. If you do not use adjustment factors under this section, your locomotives must meet emission standards for all testing, without regard to regeneration.

(2) You may ask us to approve an alternate methodology to account for regeneration events. We will generally limit approval to cases in which your locomotives use aftertreatment technology with extremely infrequent regeneration and you are unable to apply the provisions of this section.

(b) Calculating average emission factors. Calculate the average emission factor (EFA) based on the following equation:

EFA = (F)(EFH) + (1-F)(EFL)Where:F = the frequency of the regeneration event during normal in-use operation, expressed in terms of the fraction of equivalent tests during which the regeneration occurs. You may determine F from in-use operating data or running replicate tests. For example, if you observe that the regeneration occurs 125 times during 1000 MW-hrs of operation, and your locomotive typically accumulates 1 MW-hr per test, F would be (125) ÷ (1000) × (1) = 0.125.EFH = measured emissions from a test segment in which the regeneration occurs.EFL = measured emissions from a test segment in which the regeneration does not occur.

(c) Applying adjustment factors. Apply adjustment factors based on whether regeneration occurs during the test run. You must be able to identify regeneration in a way that is readily apparent during all testing.

(1) If regeneration does not occur during a test segment, add an upward adjustment factor to the measured emission rate. Determine the upward adjustment factor (UAF) using the following equation:

UAF = EFA−EFL

(2) If regeneration occurs or starts to occur during a test segment, subtract a downward adjustment factor from the measured emission rate. Determine the downward adjustment factor (DAF) using the following equation:

DAF = EFH−EFA

(d) Sample calculation. If EFL is 0.10 g/bhp-hr, EFH is 0.50 g/ bhp-hr, and F is 0.10 (the regeneration occurs once for each ten tests), then:

(e) Ramped modal testing. Develop separate adjustment factors for each test phase. If a regeneration has started but has not been completed when you reach the end of a test phase, use good engineering judgment to reduce your downward adjustments to be proportional to the emission impact that occurred in the test phases.

(f) Discrete-mode testing. Develop separate adjustment factors for each test mode. If a regeneration has started but has not been completed when you reach the end of the sampling time for a test mode extend the sampling period for that mode until the regeneration is completed.

Locomotive manufacturer/remanufacturers, as well as owners and operators of locomotives subject to the requirements of this part, and all other persons, must observe the provisions of this part, the requirements and prohibitions in 40 CFR part 1068, and the provisions of the Clean Air Act. The provisions of 40 CFR part 1068 apply for locomotives as specified in that part, except as otherwise specified in this section.

(a) Meaning of terms. When used in 40 CFR part 1068, apply meanings for specific terms as follows:

(1) “Manufacturer” means manufacturer and/or remanufacturer.

(2) “Date of manufacture” means date of original manufacture for freshly manufactured locomotives and the date on which a remanufacture is completed for remanufactured engines.

(b) Engine rebuilding. The provisions of 40 CFR 1068.120 do not apply when remanufacturing locomotives under a certificate of conformity issued under this part.

(c) Exemptions. (1) The exemption provisions of 40 CFR 1068.240 (i.e., exemptions for replacement engines) do not apply for domestic or imported locomotives. (Note: You may introduce into commerce freshly manufactured replacement engines under this part, provided the locomotives into which they are installed are covered by a certificate of conformity.)

(2) The exemption provisions of 40 CFR 1068.250 and 1068.255 (i.e., exemptions for hardship relief) do not apply for domestic or imported locomotives. See § 1033.620 for provisions related to hardship relief.

(3) The exemption provisions of 40 CFR 1068.261 (i.e., exemptions for delegated assembly) do not apply for domestic or imported locomotives, except as specified in § 1033.630.

(4) The provisions for importing engines and equipment under the identical configuration exemption of 40 CFR 1068.315(i) do not apply for locomotives.

(5) The provisions for importing engines and equipment under the ancient engine exemption of 40 CFR 1068.315(j) do not apply for locomotives.

(d) SEAs, defect reporting, and recall. The provisions of 40 CFR part 1068, subpart E (i.e., SEA provisions) do not apply for locomotives. Except as noted in this paragraph (d), the provisions of 40 CFR part 1068, subpart F, apply to certificate holders for locomotives as specified for manufacturers in that part.

(1) When there are multiple persons meeting the definition of manufacturer or remanufacturer, each person meeting the definition of manufacturer or remanufacturer must comply with the requirements of 40 CFR part 1068, subpart F, as needed so that the certificate holder can fulfill its obligations under those subparts.

(2) The defect investigation requirements of 40 CFR 1068.501(a)(5), (b)(1) and (b)(2) do not apply for locomotives. Instead, use good engineering judgment to investigate emission-related defects consistent with normal locomotive industry practice for investigating defects. You are not required to track parts shipments as indicators of possible defects.

(e) Introduction into commerce. The placement of a new locomotive or new locomotive engine back into service following remanufacturing is a violation of 40 CFR 1068.101(a)(1), unless it has a valid certificate of conformity for its model year and the required label.

In general, the provisions of this part apply for all locomotives, including those owned by Class II and Class III railroads. This section describes how these provisions apply for railroads meeting the definition of “small railroad” in § 1033.901. (Note: The term “small railroad” excludes all Class II railroads and some Class III railroads, such as those owned by large parent companies.)

(a) Locomotives become subject to the provisions of this part when they become “new” as defined in § 1033.901. Under that definition, a locomotive is “new” when first assembled, and generally becomes “new” again when remanufactured. As an exception to this general concept, locomotives that are owned and operated by railroads meeting the definition of “small railroad” in § 1033.901 do not become “new” when remanufactured, unless they were previously certified to EPA emission standards. Certificate holders may require written confirmation from the owner/operator that the locomotive qualifies as a locomotive that is owned and operated by a small railroad. Such written confirmation to a certificate holder is deemed to also be a submission to EPA and is thus subject to the reporting requirements of 40 CFR 1068.101.

(b) The provisions of subpart I of this part apply to all owners and operators of locomotives subject to this part 1033. However, the regulations of that subpart specify some provisions that apply only for Class I freight railroads, and others that apply differently to Class I freight railroads and other railroads.

(c) We may exempt new locomotives that are owned or operated by small railroads from the prohibition against remanufacturing a locomotive without a certificate of conformity as specified in this paragraph (c). This exemption is only available in cases where no certified remanufacturing system is available for the locomotive. For example, it is possible that no remanufacturer will certify a system for very old locomotive models that comprise a tiny fraction of the fleet and that are remanufactured infrequently. We will grant the exemption in all cases in which no remanufacturing system has been certified for the applicable engine family and model year. We may also grant an exemption where we determine that a certified system is unavailable. We may consider the issue of excessive costs in determining the availability of certified systems. If we grant this exemption for a previously certified locomotive, you are required to return the locomotive to its previously certified configuration. Send your request for such exemptions to the Designated Compliance Officer.

(d) Non-Class I railroads that do not meet the definition of “small railroad” in § 1033.901 may ask that their remanufactured locomotives be excluded from the definition of “new” in § 1033.901 in cases where no certified remanufacturing system is available for the locomotive. We will grant the exemption in all cases in which no remanufacturing system has been certified for the applicable engine family and model year. If we grant this exemption for a previously certified locomotive, you are required to return the locomotive to its previously certified configuration. Send your request for such exemptions to the Designated Compliance Officer.

§ 1033.615Voluntarily subjecting locomotives to the standards of this part.

The provisions of this section specify the cases in which an owner or manufacturer of a locomotive or similar piece of equipment can subject it to the standards and requirements of this part. Once the locomotive or equipment becomes subject to the locomotive standards and requirements of this part, it remains subject to the standards and requirements of this part for the remainder of its service life.

(a) Equipment excluded from the definition of “locomotive”. (1) Manufacturers/remanufacturers of equipment that is excluded from the definition of “locomotive” because of its total power, but would otherwise meet the definition of locomotive may ask to have it considered to be a locomotive. To do this, submit an application for certification as specified in subpart C of this part, explaining why it should be considered to be a locomotive. If we approve your request, it will be deemed to be a locomotive for the remainder of its service life.

(2) In unusual circumstances, we may deem other equipment to be locomotives (at the request of the owner or manufacturer/remanufacturer) where such equipment does not conform completely to the definition of locomotive, but is functionally equivalent to a locomotive.

(b) Locomotives excluded from the definition of “new”. Owners of remanufactured locomotives excluded from the definition of “new” in § 1033.901 under paragraph (2) of that definition may choose to upgrade their locomotives to subject their locomotives to the standards and requirements of this part by complying with the specifications of a certified remanufacturing system, including the labeling specifications of § 1033.135.

§ 1033.620Hardship provisions for manufacturers and remanufacturers.

(a) If you qualify for the economic hardship provisions specified in 40 CFR 1068.245, we may approve a period of delayed compliance for up to one model year total.

(b) The provisions of this paragraph (b) are intended to address problems that could occur near the date on which more stringent emission standards become effective, such as the transition from the Tier 2 standards to the Tier 3 standards for line-haul locomotives on January 1, 2012.

(1) In appropriate extreme and unusual circumstances that are clearly outside the control of the manufacturer and could not have been avoided by the exercise of prudence, diligence, and due care, we may permit you, for a brief period, to introduce into commerce locomotives which do not comply with the applicable emission standards if all of the following conditions apply:

(i) You cannot reasonably manufacture the locomotives in such a manner that they would be able to comply with the applicable standards.

(ii) The manufacture of the locomotives was substantially completed prior to the applicability date of the standards from which you seek the relief. For example, you may not request relief for a locomotive that has been ordered, but for which you will not begin the assembly process prior to the applicability date of the standards. On the other hand, we would generally consider completion of the underframe weldment to be a substantial part of the manufacturing process.

(iii) Manufacture of the locomotives was previously scheduled to be completed at such a point in time that locomotives would have been included in the previous model year, such that they would have been subject to less stringent standards, and that such schedule was feasible under normal conditions.

(iv) You demonstrate that the locomotives comply with the less stringent standards that applied to the previous model year's production described in paragraph (b)(1)(iii) of this section, as prescribed by subpart C of this part (i.e., that the locomotives are identical to locomotives certified in the previous model year).

(v) You exercised prudent planning, were not able to avoid the violation, and have taken all reasonable steps to minimize the extent of the nonconformity.

(vi) We approve your request before you introduce the locomotives into commerce.

(2) You must notify us as soon as you become aware of the extreme or unusual circumstances.

(3)(i) Include locomotives for which we grant relief under this section in the engine family for which they were originally intended to be included.

(ii) Where the locomotives are to be included in an engine family that was certified to an FEL above the applicable standard, you must reserve credits to cover the locomotives covered by this allowance and include the required information for these locomotives in the end-of-year report required by subpart H of this part.

(c) In granting relief under this section, we may also set other conditions as appropriate, such as requiring payment of fees to negate an economic gain that such relief would otherwise provide.

You may certify freshly manufactured or remanufactured locomotives using non-locomotive-specific engines (as defined in § 1033.901) using the normal certification procedures of this part. Locomotives certified in that way are generally treated the same as other locomotives, except where specified otherwise. The provisions of this section provide for design certification to the locomotive standards in this part for locomotives using engines included in engine families certified under 40 CFR part 1039 (or part 89) in limited circumstances.

(a) Remanufactured or freshly manufactured switch locomotives powered by non-locomotive-specific engines may be certified by design without the test data required by § 1033.235 if all of the following are true:

(1) Before being installed in the locomotive, the engines were covered by a certificate of conformity issued under 40 CFR Part 1039 (or part 89) that is effective for the calendar year in which the manufacture or remanufacture occurs. You may use engines certified during the previous years if they were subject to the same standards. You may not make any modifications to the engines unless we approve them.

(2) The engines were certified to standards that are numerically lower than the applicable locomotive standards of this part.

(3) More engines are reasonably projected to be sold and used under the certificate for non-locomotive use than for use in locomotives.

(4) The number of such locomotives certified under this section does not exceed 30 in any three-year period. We may waive this sales limit for locomotive models that have previously demonstrated compliance with the locomotive standards of § 1033.101 in-use.

(5) We approved the application as specified in paragraph (d) of this section.

(b) To certify your locomotives by design under this section, submit your application as specified in § 1033.205, with the following exceptions:

(1) Include the following instead of the locomotive test data otherwise required by § 1033.205:

(i) A description of the engines to be used, including the name of the engine manufacturer and engine family identifier for the engines.

(ii) A brief engineering analysis describing how the engine's emission controls will function when installed in the locomotive throughout the locomotive's useful life.

(iii) The emission data submitted under 40 CFR part 1039 (or part 89).

(2) You may separately submit some of the information required by § 1033.205, consistent with the provisions of § 1033.1(d). For example, this may be an appropriate way to submit detailed information about proprietary engine software. Note that this allowance to separately submit some of the information required by § 1033.205 is also available for applications not submitted under this section.

(c) Locomotives certified under this section are subject to all the requirements of this part except as specified in paragraph (b) of this section. The engines used in such locomotives are not considered to be included in the otherwise applicable engines family of 40 CFR part 1039 (or part 89).

(d) We will approve or deny the application as specified in subpart C of this part. For example, we will deny your application for certification by design under this section in any case where we have evidence that your locomotives will not conform to the requirements of this part throughout their useful lives.

(a) Staged assembly. You may ask us to provide a temporary exemption to allow you to complete production of your engines and locomotives at different facilities, as long as you maintain control of the engines until they are in their certified configuration. We may require you to take specific steps to ensure that such locomotives are in their certified configuration before reaching the ultimate purchaser. You may request an exemption under this paragraph (a) in your application for certification, or in a separate submission. If you include your request in your application, your exemption is approved when we grant your certificate. Note that no exemption is needed to ship an engine that has been assembled in its certified configuration, is properly labeled, and will not require an aftertreatment device to be attached when installed in the locomotive.

(b) Delegated assembly. This paragraph (b) applies where the engine manufacturer/remanufacturer does not complete assembly of the locomotives and the engine is shipped after being manufactured or remanufactured (partially or completely). The provisions of this paragraph (b) apply differently depending on who holds the certificate of conformity and the state of the engine when it is shipped. You may request an exemption under this paragraph (b) in your application for certification, or in a separate submission. If you include your request in your application, your exemption is approved when we grant your certificate. A manufacturer/remanufacturer may request an exemption under 40 CFR 1068.261 instead of under this section.

(1) In cases where an engine has been assembled in its certified configuration, properly labeled, and will not require an aftertreatment device to be attached when installed in the locomotive, no exemption is needed to ship the engine. You do not need an exemption to ship engines without specific components if they are not emission-related components identified in Appendix I of 40 CFR part 1068.

(2) In cases where an engine has been properly labeled by the certificate holder and assembled in its certified configuration except that it does not yet have a required aftertreatment device, an exemption is required to ship the engine. You may ask for this exemption if you do all of the following:

(i) You note on the Engine Emission Control Information label that the locomotive must include the aftertreatment device to be covered by the certificate.

(ii) You make clear in your emission-related installation instructions that installation of the aftertreatment device is required for the locomotive to be covered by the certificate.

(3) In cases where an engine will be shipped to the certificate holder in an uncertified configuration, an exemption is required to ship the engine. You may ask for this exemption under 40 CFR 1068.262.

(c) Other exemptions. In unusual circumstances, you may ask us to provide an exemption for an assembly process that is not covered by the provisions of paragraphs (a) and (b) of this section. We will make the exemption conditional based on you complying with requirements that we determine are necessary to ensure that the locomotives are assembled in their certified configuration before being placed (back) into service.

(a) The provisions of this section apply for locomotives that are produced from an existing locomotive so that the new locomotive contains both previously used parts and parts that have never been used before.

(1) Repowered locomotives are used locomotives in which a freshly manufactured propulsion engine is installed. As described in this section, a repowered locomotive is deemed to be either remanufactured or freshly manufactured, depending on the total amount of unused parts on the locomotive. It may also be deemed to be a refurbished locomotive.

(2) Refurbished locomotives are locomotives that contain more unused parts than previously used parts. As described in this section, a locomotive containing more unused parts than previously used parts may be deemed to be either remanufactured or freshly manufactured, depending on the total amount of unused parts on the locomotive. Note that § 1033.901 defines refurbishment of a pre-1973 locomotive to be an upgrade of the locomotive.

(b) A single existing locomotive cannot be divided into parts and combined with new parts to create more than one remanufactured locomotive. However, any number of locomotives can be divided into parts and combined with new parts to create more than one remanufactured locomotive, provided the number of locomotives created (remanufactured and freshly manufactured) does not exceed the number of locomotives that were disassembled.

(c) You may determine the relative amount of previously used parts consistent with the specifications of the Federal Railroad Administration. Otherwise, determine the relative amount of previously used parts as follows:

(1) Identify the parts in the fully assembled locomotive that have been previously used and those that have never been used before.

(2) Weight the unused parts and previously used parts by the dollar value of the parts. For example, a single part valued at $1200 would count the same as six parts valued at $200 each. Group parts by system where possible (such as counting the engine as one part) if either all the parts in that system are used or all the parts in that system are unused. Calculate the used part values using dollar values from the same year as the new parts.

(3) Sum the values of the unused parts. Also sum the values of the previously used parts. The relative fraction of used parts is the total value of previously used parts divided by the combined value of the unused parts and previously used parts.

(c) If the weighted fraction of the locomotive that is comprised of previously used parts is greater than or equal to 25 percent, then the locomotive is considered to be a remanufactured locomotive and retains its original date of manufacture. Note, however, that if the weighted fraction of the locomotive that is comprised of previously used parts is less than 50 percent, then the locomotive is also considered to be a refurbished locomotive.

(d) If the weighted fraction of the locomotive that is comprised of previously used parts is less than 25 percent, then the locomotive is deemed to be a freshly manufactured locomotive and the date of original manufacture is the most recent date on which the locomotive was assembled using less than 25 percent previously used parts. For example:

(1) If you produce a new locomotive that includes a used frame, but all other parts are unused, then the locomotive would likely be considered to be a freshly manufactured locomotive because the value of the frame would likely be less than 25 percent of the total value of the locomotive. Its date of original manufacture would be the date on which you complete its assembly.

(2) If you produce a new locomotive by replacing the engine in a 1990 locomotive with a freshly manufactured engine, but all other parts are used, then the locomotive would likely be considered to be a remanufactured locomotive and its date of original manufacture is the date on which assembly was completed in 1990. (Note: such a locomotive would also be considered to be a repowered locomotive.)

(e) Locomotives containing used parts that are deemed to be freshly manufactured locomotives are subject to the same provisions as all other freshly manufactured locomotives. Other refurbished locomotives are subject to the same provisions as other remanufactured locomotives, with the following exceptions:

(1) Switch locomotives. (i) Prior to January 1, 2015, remanufactured Tier 0 switch locomotives that are deemed to be refurbished are subject to the Tier 0 line-haul cycle and switch cycle standards. Note that this differs from the requirements applicable to other Tier 0 switch locomotives, which are not subject to the Tier 0 line-haul cycle standards.

(ii) Beginning January 1, 2015, remanufactured Tier 3 and earlier switch locomotives that are deemed to be refurbished are subject to the Tier 3 switch standards.

(2) Line-haul locomotives. Remanufactured line-haul locomotives that are deemed to be refurbished are subject to the same standards as freshly manufactured line-haul locomotives, except that line-haul locomotives with rated power less than 3000 hp that are refurbished before January 1, 2015 are subject to the same standards as refurbished switch locomotives under paragraph (e)(1)(i) of this section. However, line-haul locomotives less than 3000 hp may not generate emission credits relative to the standards specified in paragraph (e)(1)(i) of this section.

(3) Labels for switch and line-haul locomotives. Remanufacturers that refurbish a locomotive must add a secondary locomotive label that includes the following:

(ii) The statement identifying when the locomotive was refurbished and what standards it is subject to, as follows: “THIS LOCOMOTIVE WAS REFURBISHED IN [year of refurbishment] AND MUST COMPLY WITH THE TIER [applicable standard level] EACH TIME THAT IT IS REMANUFACTURED, EXCEPT AS ALLOWED BY 40 CFR 1033.750.”.

At 73 FR 37197, June 30, 2008, § 1033.640 was added. This amendment included two paragraphs (c) in the original text.

§ 1033.645Non-OEM component certification program.

This section describes a voluntary program that allows you to get EPA approval of components you manufacture for use during remanufacturing.

(a) Applicability. This section applies only for components that are commonly replaced during remanufacturing. It does not apply for other types of components that are replaced during a locomotive's useful life, but not typically replaced during remanufacture. Certified components may be used for remanufacturing or other maintenance.

(1) The following components are eligible for approval under this section:

(i) Cylinder liners.

(ii) Pistons.

(iii) Piston rings.

(iv) Heads

(v) Fuel injectors.

(vi) Turbochargers

(vii) Aftercoolers and intercoolers.

(2) Catalysts and electronic controls are not eligible for approval under this section.

(3) We may determine that other types of components can be certified under this section, consistent with good engineering judgment.

(i) A description of the component(s) for which you are requesting approval.

(ii) A list of all engine/locomotive models and engine families for which your component would be used. You may exclude models that are not subject to our standards or will otherwise not be remanufactured under a certificate of conformity.

(iii) A copy of the maintenance instructions for engines using your component. You may reference the other certificate holder's maintenance instructions in your instructions. For example, your instructions may specify to follow the other certificate holder's instructions in general, but list one or more exceptions to address the specific maintenance needs of your component.

(iv) An engineering analysis (including test data in some cases) demonstrating to us that your component will not cause emissions to increase. The analysis must address both low-hour and end-of-useful life emissions. The amount of information required for this analysis is less than is required to obtain a certificate of conformity under subpart C of this part and will vary depending on the type of component being certified.

(v) The following statement signed by an authorized representative of your company: We submit this request under 40 CFR 1033.645. All the information in this report is true and accurate to the best of my knowledge. I know of the penalties for violating the Clean Air Act and the regulations. (Authorized Company Representative)

(2) If we determine that there is reasonable technical basis to believe that your component is sufficiently equivalent that it will not increase emissions, we will approve your request and you will be a certificate holder for your components with respect to actual emissions performance for all locomotives that use those components (in accordance with this section).

(c) Liability. Being a certificate holder under this section means that if in-use testing indicates that a certified locomotive using one or more of your approved components does not comply with an applicable emission standard, we will presume that you and other certificate holders are liable for the noncompliance. However, we will not hold you liable in cases where you convince us that your components did not cause the noncompliance. Conversely, we will not hold other certificate holders liable for noncompliance caused solely by your components. You are also subject to the warranty and defect reporting requirements of this part for your certified components. Other requirements of this part apply as specified in § 1033.1.

(d) In-use testing. Locomotives containing your components must be tested according to the provisions of this paragraph (d).

(1) Except as specified in paragraph (d)(5) of this section, you must test at least one locomotive if 250 locomotives use your component under this section. You must test one additional locomotive for the next additional 500 locomotives that use your component under this section. After that, we may require you to test one additional locomotive for each additional 1000 locomotives that use your component under this section. These numbers apply across model years. For example, if your component is used in 125 remanufactures per year under this section, you must test one of the first 250 locomotives, one of the next 500 locomotives, and up to one every eight years after that. Do not count locomotives that use your components but are not covered by this section.

(2) Except for the first locomotive you test for a specific component under this section, locomotives tested under this paragraph (d) must be past the half-way point of the useful life in terms of MW-hrs. For the first locomotive you test, select a locomotive that has operated between 25 and 50 percent of its useful life.

(3) Unless we approve a different schedule, you must complete testing and report the results to us within 180 days of the earliest point at which you could complete the testing based on the hours of operation accumulated by the locomotives. For example, if 250 or more locomotives use your part under this section, and the first of these to reach 25 percent of its useful life does so on March 1st of a given year, you must complete testing of one of the first 250 locomotives and report to us by August 28th of that year.

(4) Unless we approve different test procedures, you must test the locomotive according to the procedures specified in subpart F of this part.

(5) If any locomotives fail to meet all standards, we may require you to test one additional locomotive for each locomotive that fails. You may choose to accept that your part is causing an emission problem rather than continuing testing. You may also test additional locomotives at any time. We will consider failure rates, average emission levels and the existence of any defects among other factors in determining whether to pursue remedial action. We may order a recall pursuant to 40 CFR part 1068 before you complete testing additional locomotives.

(6) You may ask us to allow you to rely on testing performed by others instead of requiring you to perform testing. For example, if a railroad tests a locomotive with your component as part of its testing under § 1033.810, you may ask to submit those test data as fulfillment of your test obligations under this paragraph (d). If a given test locomotive uses different components certified under this section that were manufactured by different manufacturers (such as rings from one manufacturer and cylinder liners from another manufacturer), a single test of it may be counted towards both manufacturers' test obligations. In unusual circumstances, you may also ask us to grant you hardship relief from the testing requirements of this paragraph (d). In determining whether to grant you relief, we will consider all relevant factors including the extent of the financial hardship to your company and whether the test data are available from other sources, such as testing performed by a railroad.

(e) Components certified under this section may be used when remanufacturing Category 2 engines under 40 CFR part 1042.

You may ask us to exempt from the requirements and prohibitions of this part locomotives that are operated primarily outside of the United States and that enter the United States temporarily from Canada or Mexico. We will approve this exemption only where we determine that the locomotive's operation within the United States will not be extensive and will be incidental to its primary operation. For example, we would generally exempt locomotives that will not operate more than 25 miles from the border and will operate in the United States less than 5 percent of their operating time. For existing operations, you must request this exemption before January 1, 2011. In your request, identify the locomotives for which you are requesting an exemption, and describe their projected use in the United States. We may grant the exemption broadly or limit the exemption to specific locomotives and/or specific geographic areas. However, we will typically approve exemptions for specific rail facilities rather than specific locomotives. In unusual circumstances, such as cases in which new rail facilities are created, we may approve requests submitted after January 1, 2011.

§ 1033.652Special provisions for exported locomotives.

(a) Uncertified locomotives. Locomotives covered by an export exemption under 40 CFR 1068.230 may be introduced into U.S. commerce prior to being exported, but may not be used in any revenue generating service in the United States. Locomotives covered by this paragraph (a) may not include any EPA emission control information label. Such locomotives may include emission control information labels for the country to which they are being exported.

(b) Locomotives covered by export-only certificates. Locomotives may be certified for export under 40 CFR 1068.230. Such locomotives may be introduced into U.S. commerce prior to being exported, but may not be used in any revenue generating service in the United States.

(c) Locomotives included in a certified engine family. Except as specified in paragraph (d) of this section, locomotives included in a certified engine family may be exported without restriction. Note that § 1033.705 requires that exported locomotives be excluded from emission credit calculations in certain circumstances.

(d) Locomotives certified to FELs above the standards. The provisions of this paragraph (d) apply for locomotive configurations included in engine families certified to one or more FELs above any otherwise applicable standard. Individual locomotives that will be exported may be excluded from an engine family if they are unlabeled. For locomotives that were labeled during production, you may remove the emission control information labels prior to export. All unlabeled locomotives that will be exported are subject to the provisions of paragraph (a) of this section. Locomotives that are of a configuration included in an engine family certified to one of more FELs above any otherwise applicable standard that include an EPA emission control information label when exported are considered to be part of the engine family and must be included in credit calculations under § 1033.705. Note that this requirement does not apply for locomotives that do not have an EPA emission control information label, even if they have other labels (such as an export-only label).

(a) The provisions of this section apply only for the following locomotives (and locomotives in the same engine families as these locomotives):

(1) Locomotives listed in Table 1 of this section originally manufactured 1986-1994 by General Electric Company that have never been equipped with separate loop aftercooling. The section also applies for the equivalent passenger locomotives.

(2) SD70MAC and SD70IAC locomotives originally manufactured 1996-2000 by EMD.

(b) Any certifying remanufacturer may request relief for the locomotives covered by this section.

(c) You may ask us to allow these locomotives to exceed otherwise applicable line-haul cycle NOX standard for high ambient temperatures and/or altitude because of limitations of the cooling system. However, the NOX emissions may exceed the otherwise applicable standard only to the extent necessary. Relief is limited to the following conditions:

(1) For General Electric locomotives, you may ask for relief for ambient temperatures above 23 °C and/or barometric pressure below 97.5 kPa (28.8 in. Hg). NOX emissions may not exceed 9.5 g/bhp-hr over the line-haul cycle for any temperatures up to 105 °F and any altitude up to 7000 feet above sea level.

(2) For EMD locomotives, you may ask for relief for ambient temperatures above 30 °C and/or barometric pressure below 97.5 kPa (28.8 in. Hg). NOX emissions may not exceed 8.0 g/bhp-hr over the line-haul cycle for any temperatures up to 105 °F and any altitude up to 7000 feet above sea level.

(d) All other standards and requirements in this part apply as specified.

(e) To request this relief, submit to the Designated Compliance Officer along with your application for certification an engineering analysis showing how your emission controls operate for the following conditions:

(a) You may average, bank, and trade (ABT) emission credits for purposes of certification as described in this subpart to show compliance with the standards of this part. Participation in this program is voluntary.

(b) Section 1033.740 restricts the use of emission credits to certain averaging sets.

(c) The definitions of Subpart J of this part apply to this subpart. The following definitions also apply:

(1) Actual emission credits means emission credits you have generated that we have verified by reviewing your final report.

(2) Applicable emission standard means an emission standard that is specified in subpart B of this part. Note that for other subparts, “applicable emission standard” is defined to also include FELs.

(3) Averaging set means a set of locomotives in which emission credits may be exchanged only with other locomotives in the same averaging set.

(4) Broker means any entity that facilitates a trade of emission credits between a buyer and seller.

(5) Buyer means the entity that receives emission credits as a result of a trade.

(6) Reserved emission credits means emission credits you have generated that we have not yet verified by reviewing your final report.

(7) Seller means the entity that provides emission credits during a trade.

(8) Trade means to exchange emission credits, either as a buyer or seller.

(9) Transfer means to convey control of credits generated for an individual locomotive to the purchaser, owner, or operator of the locomotive at the time of manufacture or remanufacture; or to convey control of previously generated credits from the purchaser, owner, or operator of an individual locomotive to the manufacturer/remanufacturer at the time of manufacture/remanufacture.

(d) You may not use emission credits generated under this subpart to offset any emissions that exceed an FEL or standard. This applies for all testing, including certification testing, in-use testing, selective enforcement audits, and other production-line testing. However, if emissions from a locomotive exceed an FEL or standard (for example, during a selective enforcement audit), you may use emission credits to recertify the engine family with a higher FEL that applies only to future production.

(e) Engine families that use emission credits for one or more pollutants may not generate positive emission credits for another pollutant.

(f) Emission credits may be used in the model year they are generated or in future model years. Emission credits may not be used for past model years.

(g) You may increase or decrease an FEL during the model year by amending your application for certification under § 1033.225. The new FEL may apply only to locomotives you have not already introduced into commerce. Each locomotive's emission control information label must include the applicable FELs. You must conduct production line testing to verify that the emission levels are achieved.

(h) Credits may be generated by any certifying manufacturer/remanufacturer and may be held by any of the following entities:

(1) Locomotive or engine manufacturers.

(2) Locomotive or engine remanufacturers.

(3) Locomotive owners.

(4) Locomotive operators.

(5) Other entities after notification to EPA.

(i) All locomotives that are certified to an FEL that is different from the emission standard that would otherwise apply to the locomotives are required to comply with that FEL for the remainder of their service lives, except as allowed by § 1033.750.

(1) Manufacturers must notify the purchaser of any locomotive that is certified to an FEL that is different from the emission standard that would otherwise apply that the locomotive is required to comply with that FEL for the remainder of its service life.

(2) Remanufacturers must notify the owner of any locomotive or locomotive engine that is certified to an FEL that is different from the emission standard that would otherwise apply that the locomotive (or the locomotive in which the engine is used) is required to comply with that FEL for the remainder of its service life.

(j) The FEL to which the locomotive is certified must be included on the locomotive label required in § 1033.135. This label must include the notification specified in paragraph (i) of this section.

§ 1033.705Calculating emission credits.

The provisions of this section apply separately for calculating emission credits for NOX or PM.

(a) Calculate positive emission credits for an engine family that has an FEL below the otherwise applicable emission standard. Calculate negative emission credits for an engine family that has an FEL above the otherwise applicable emission standard. Do not round until the end of year report.

(b) For each participating engine family, calculate positive or negative emission credits relative to the otherwise applicable emission standard. For the end of year report, round the sum of emission credits to the nearest one hundredth of a megagram (0.01 Mg). Round your end of year emission credit balance to the nearest megagram (Mg). Use consistent units throughout the calculation. When useful life is expressed in terms of megawatt-hrs, calculate credits for each engine family from the following equation:

Emission credits = (Std−FEL) × (1.341) × (UL) × (Production) × (Fp) × (10−3 kW-Mg/MW-g).Where:Std = the applicable NOX or PM emission standard in g/bhp-hr (except that Std = previous FEL in g/bhp-hr for locomotives that were certified under this part to an FEL other than the standard during the previous useful life).FEL = the family emission limit for the engine family in g/bhp-hr.UL = the sales-weighted average useful life in megawatt-hours (or the subset of the engine family for which credits are being calculated), as specified in the application for certification.Production = the number of locomotives participating in the averaging, banking, and trading program within the given engine family during the calendar year (or the number of locomotives in the subset of the engine family for which credits are being calculated). Quarterly production projections are used for initial certification. Actual applicable production/sales volumes are used for end-of-year compliance determination.Fp = the proration factor as determined in paragraph (d) of this section.

(c) When useful life is expressed in terms of miles, calculate the useful life in terms of megawatt-hours (UL) by dividing the useful life in miles by 100,000, and multiplying by the sales-weighted average rated power of the engine family. For example, if your useful life is 800,000 miles for a family with an average rated power of 3,500 hp, then your equivalent MW-hr useful life would be 28,000 MW-hrs. Credits are calculated using this UL value in the equations of paragraph (b) of this section.

(d) The proration factor is an estimate of the fraction of a locomotive's service life that remains as a function of age. The proration factor is 1.00 for freshly manufactured locomotives.

(1) The locomotive's age is the length of time in years from the date of original manufacture to the date at which the remanufacture (for which credits are being calculated) is completed, rounded to the next higher year.

(2) The proration factors for line-haul locomotives ages 1 through 20 are specified in Table 1 to this section. For line-haul locomotives more than 20 years old, use the proration factor for 20 year old locomotives. The proration factors for switch locomotives ages 1 through 40 are specified in Table 2 to this section. For switch locomotives more than 40 years old, use the proration factor for 40 year old locomotives.

(3) For repower engines, the proration factor is based on the age of the locomotive chassis, not the age of the engine, except for remanufactured locomotives that qualify as refurbished. The minimum proration factor for remanufactured locomotives that meet the definition of refurbished but not freshly manufactured is 0.60. (Note: The proration factor is 1.00 for all locomotives that meet the definition of freshly manufactured.)

(e) In your application for certification, base your showing of compliance on projected production volumes for locomotives that will be placed into service in the United States. As described in § 1033.730, compliance with the requirements of this subpart is determined at the end of the model year based on actual production volumes for locomotives that will be placed into service in the United States. Do not include any of the following locomotives to calculate emission credits:

(1) Locomotives permanently exempted under subpart G of this part or under 40 CFR part 1068.

(2) Exported locomotives. You may ask to include locomotives sold to Mexican or Canadian railroads if they will likely operate within the United States and you include all such locomotives (both credit using and credit generating locomotives).

(3) Locomotives not subject to the requirements of this part, such as those excluded under § 1033.5.

(4) Any other locomotives, where we indicate elsewhere in this part 1033 that they are not to be included in the calculations of this subpart.

(a) Averaging is the exchange of emission credits among your engine families. You may average emission credits only as allowed by § 1033.740.

(b) You may certify one or more engine families to an FEL above the applicable emission standard, subject to the FEL caps and other provisions in subpart B of this part, if you show in your application for certification that your projected balance of all emission-credit transactions in that model year is greater than or equal to zero.

(c) If you certify an engine family to an FEL that exceeds the otherwise applicable emission standard, you must obtain enough emission credits to offset the engine family's deficit by the due date for the final report required in § 1033.730. The emission credits used to address the deficit may come from your other engine families that generate emission credits in the same model year, from emission credits you have banked, or from emission credits you obtain through trading or by transfer.

§ 1033.715Banking emission credits.

(a) Banking is the retention of emission credits by the manufacturer/remanufacturer generating the emission credits (or owner/operator, in the case of transferred credits) for use in future model years for averaging, trading, or transferring. You may use banked emission credits only as allowed by § 1033.740.

(b) You may designate any emission credits you plan to bank in the reports you submit under § 1033.730 as reserved credits. During the model year and before the due date for the final report, you may designate your reserved emission credits for averaging, trading, or transferring.

(c) Reserved credits become actual emission credits when you submit your final report. However, we may revoke these emission credits if we are unable to verify them after reviewing your reports or auditing your records.

[75 FR 22987, Apr. 30, 2010]§ 1033.720Trading emission credits.

(a) Trading is the exchange of emission credits between certificate holders. You may use traded emission credits for averaging, banking, or further trading transactions. Traded emission credits may be used only as allowed by § 1033.740.

(b) You may trade actual emission credits as described in this subpart. You may also trade reserved emission credits, but we may revoke these emission credits based on our review of your records or reports or those of the company with which you traded emission credits.

(c) If a negative emission credit balance results from a transaction, both the buyer and seller are liable, except in cases we deem to involve fraud. See § 1033.255(e) for cases involving fraud. We may void the certificates of all engine families participating in a trade that results in a manufacturer/remanufacturer having a negative balance of emission credits. See § 1033.745.

§ 1033.722Transferring emission credits.

(a) Credit transfer is the conveying of control over credits, either:

(1) From a certifying manufacturer/remanufacturer to an owner/operator.

(2) From an owner/operator to a certifying manufacturer/remanufacturer.

(b) Transferred credits can be:

(1) Used by a certifying manufacturer/remanufacturer in averaging.

(2) Transferred again within the model year.

(3) Reserved for later banking. Transferred credits may not be traded unless they have been previously banked.

(a) You must declare in your application for certification your intent to use the provisions of this subpart for each engine family that will be certified using the ABT program. You must also declare the FELs you select for the engine family for each pollutant for which you are using the ABT program. Your FELs must comply with the specifications of subpart B of this part, including the FEL caps. FELs must be expressed to the same number of decimal places as the applicable emission standards.

(b) Include the following in your application for certification:

(1) A statement that, to the best of your belief, you will not have a negative balance of emission credits for any averaging set when all emission credits are calculated at the end of the year.

(2) Detailed calculations of projected emission credits (positive or negative) based on projected production volumes. We may require you to include similar calculations from your other engine families to demonstrate that you will be able to avoid a negative credit balance for the model year. If you project negative emission credits for a family, state the source of positive emission credits you expect to use to offset the negative emission credits.

(a) If any of your engine families are certified using the ABT provisions of this subpart, you must send an end-of-year report within 90 days after the end of the model year and a final report within 270 days after the end of the model year. We may waive the requirement to send the end-of year report, as long as you send the final report on time.

(b) Your end-of-year and final reports must include the following information for each engine family participating in the ABT program:

(1) Engine family designation.

(2) The emission standards that would otherwise apply to the engine family.

(3) The FEL for each pollutant. If you change the FEL after the start of production, identify the date that you started using the new FEL and/or give the engine identification number for the first engine covered by the new FEL. In this case, identify each applicable FEL and calculate the positive or negative emission credits as specified in § 1033.225.

(4) The projected and actual production volumes for the model year that will be placed into service in the United States as described in § 1033.705. If you changed an FEL during the model year, identify the actual production volume associated with each FEL.

(5) Rated power for each locomotive configuration, and the average locomotive power weighted by U.S.-directed production volumes for the engine family.

(6) Useful life.

(7) Calculated positive or negative emission credits for the whole engine family. Identify any emission credits that you traded or transferred, as described in paragraph (d)(1) or (e) of this section.

(c) Your end-of-year and final reports must include the following additional information:

(1) Show that your net balance of emission credits from all your engine families in each averaging set in the applicable model year is not negative.

(2) State whether you will retain any emission credits for banking.

(3) State that the report's contents are accurate.

(d) If you trade emission credits, you must send us a report within 90 days after the transaction, as follows:

(1) As the seller, you must include the following information in your report:

(i) The corporate names of the buyer and any brokers.

(ii) A copy of any contracts related to the trade.

(iii) The engine families that generated emission credits for the trade, including the number of emission credits from each family.

(2) As the buyer, you must include the following information in your report:

(i) The corporate names of the seller and any brokers.

(ii) A copy of any contracts related to the trade.

(iii) How you intend to use the emission credits, including the number of emission credits you intend to apply to each engine family (if known).

(e) If you transfer emission credits, you must send us a report within 90 days after the first transfer to an owner/operator, as follows:

(1) Include the following information:

(i) The corporate names of the owner/operator receiving the credits.

(ii) A copy of any contracts related to the trade.

(iii) The serial numbers and engine families for the locomotive that generated the transferred emission credits and the number of emission credits from each family.

(2) The requirements of this paragraph (e) apply separately for each owner/operator.

(3) We may require you to submit additional 90-day reports under this paragraph (e).

(f) Send your reports electronically to the Designated Compliance Officer using an approved information format. If you want to use a different format, send us a written request with justification for a waiver.

(g) Correct errors in your end-of-year report or final report as follows:

(1) You may correct any errors in your end-of-year report when you prepare the final report, as long as you send us the final report by the time it is due.

(2) If you or we determine within 270 days after the end of the model year that errors mistakenly decreased your balance of emission credits, you may correct the errors and recalculate the balance of emission credits. You may not make these corrections for errors that are determined more than 270 days after the end of the model year. If you report a negative balance of emission credits, we may disallow corrections under this paragraph (g)(2).

(3) If you or we determine anytime that errors mistakenly increased your balance of emission credits, you must correct the errors and recalculate the balance of emission credits.

(h) We may modify these requirements for owners/operators required to submit reports because of their involvement in credit transferring.

(a) You must organize and maintain your records as described in this section. We may review your records at any time.

(b) Keep the records required by this section for at least eight years after the due date for the end-of-year report. You may not use emission credits for any engines if you do not keep all the records required under this section. You must therefore keep these records to continue to bank valid credits. Store these records in any format and on any media, as long as you can promptly send us organized, written records in English if we ask for them. You must keep these records readily available. We may review them at any time.

(c) Keep a copy of the reports we require in § 1033.730.

(d) Keep records of the engine identification number for each locomotive you produce that generates or uses emission credits under the ABT program. If you change the FEL after the start of production, identify the date you started using each FEL and the range of engine identification numbers associated with each FEL. You must also be able to identify the purchaser and destination for each engine you produce.

(e) We may require you to keep additional records or to send us relevant information not required by this section in accordance with the Clean Air Act.

Use of emission credits generated under this part 1033 or 40 CFR part 92 is restricted depending on the standards against which they were generated.

(a) Credits from 40 CFR part 92. NOX and PM credits generated under 40 CFR part 92 may be used under this part in the same manner as NOX and PM credits generated under this part.

(b) General cycle restriction. Locomotives subject to both switch cycle standards and line-haul cycle standards (such as Tier 2 locomotives) may generate both switch and line-haul credits. Except as specified in paragraph (c) of this section, such credits may only be used to show compliance with standards for the same cycle for which they were generated. For example, a Tier 2 locomotive that is certified to a switch cycle NOX FEL below the applicable switch cycle standard and a line-haul cycle NOX FEL below the applicable line-haul cycle standard may generate switch cycle NOX credits for use in complying with switch cycle NOX standards and a line-haul cycle NOX credits for use in complying with line-haul cycle NOX standards.

(c) Single cycle locomotives. As specified in § 1033.101, Tier 0 switch locomotives, Tier 3 and later switch locomotives, and Tier 4 and later line-haul locomotives are not subject to both switch cycle and line-haul cycle standards.

(1) When using credits generated by locomotives covered by paragraph (b) of this section for single cycle locomotives covered by this paragraph (c), you must use both switch and line-haul credits as described in this paragraph (c)(1).

(i) For locomotives subject only to switch cycle standards, calculate the negative switch credits for the credit using locomotive as specified in § 1033.705. Such locomotives also generate an equal number of negative line-haul cycle credits (in Mg).

(ii) For locomotives subject only to line-haul cycle standards, calculate the negative line-haul credits for the credit using locomotive as specified in § 1033.705. Such locomotives also generate an equal number of negative switch cycle credits (in Mg).

(2) Credits generated by Tier 0, Tier 3, or Tier 4 switch locomotives may be used to show compliance with any switch cycle or line-haul cycle standards.

(3) Credits generated by any line-haul locomotives may not be used by Tier 3 or later switch locomotives.

(d) Tier 4 credit use. The number of Tier 4 locomotives that can be certified using credits in any year may not exceed 50 percent of the total number of Tier 4 locomotives you produce in that year for U.S. sales.

(e) Other restrictions. Other sections of this part may specify additional restrictions for using emission credits under certain special provisions.

§ 1033.745Compliance with the provisions of this subpart.

The provisions of this section apply to certificate holders.

(a) For each engine family participating in the ABT program, the certificate of conformity is conditional upon full compliance with the provisions of this subpart during and after the model year. You are responsible to establish to our satisfaction that you fully comply with applicable requirements. We may void the certificate of conformity for an engine family if you fail to comply with any provisions of this subpart.

(b) You may certify your engine family to an FEL above an applicable emission standard based on a projection that you will have enough emission credits to offset the deficit for the engine family. However, we may void the certificate of conformity if you cannot show in your final report that you have enough actual emission credits to offset a deficit for any pollutant in an engine family.

(c) We may void the certificate of conformity for an engine family if you fail to keep records, send reports, or give us information we request.

(d) You may ask for a hearing if we void your certificate under this section (see § 1033.920).

§ 1033.750Changing a locomotive's FEL at remanufacture.

Locomotives are generally required to be certified to the previously applicable emission standard or FEL when remanufactured. This section describes provisions that allow a remanufactured locomotive to be certified to a different FEL (higher or lower).

(a) A remanufacturer may choose to certify a remanufacturing system to change the FEL of a locomotive from a previously applicable FEL or standard. Any locomotives remanufactured using that system are required to comply with the revised FEL for the remainder of their service lives, unless it is changed again under this section during a later remanufacture. Remanufacturers changing an FEL must notify the owner of the locomotive that it is required to comply with that FEL for the remainder of its service life.

(b) Calculate the credits needed or generated as specified in § 1033.705, except as specified in this paragraph. If the locomotive was previously certified to an FEL for the pollutant, use the previously applicable FEL as the standard.

The requirements of this subpart are applicable to railroads and all other owners and operators of locomotives subject to the provisions of this part, except as otherwise specified. The prohibitions related to maintenance in § 1033.815 also applies to anyone performing maintenance on a locomotive subject to the provisions of this part.

§ 1033.805Remanufacturing requirements.

(a) See the definition of “remanufacture” in § 1033.901 to determine if you are remanufacturing your locomotive or engine. (Note: Replacing power assemblies one at a time may qualify as remanufacturing, depending on the interval between replacement.)

(b) See the definition of “new” in § 1033.901 to determine if remanufacturing your locomotive makes it subject to the requirements of this part. If the locomotive is considered to be new, it is subject to the certification requirements of this part, unless it is exempt under subpart G of this part. The standards to which your locomotive is subject will depend on factors such as the following:

(1) Its date of original manufacture.

(2) The FEL to which it was previously certified, which is listed on the “Locomotive Emission Control Information” label.

(3) Its power rating (whether it is above or below 2300 hp).

(4) The calendar year in which it is being remanufactured.

(c) You may comply with the certification requirements of this part for your remanufactured locomotive by either obtaining your own certificate of conformity as specified in subpart C of this part or by having a certifying remanufacturer include your locomotive under its certificate of conformity. In either case, your remanufactured locomotive must be covered by a certificate before it is reintroduced into service.

(d) If you do not obtain your own certificate of conformity from EPA, contact a certifying remanufacturer to have your locomotive included under its certificate of conformity. Confirm with the certificate holder that your locomotive's model, date of original manufacture, previous FEL, and power rating allow it to be covered by the certificate. You must do all of the following:

(1) Comply with the certificate holder's emission-related installation instructions, which should include the following:

(i) A description of how to assemble and adjust the locomotive so that it will operate according to design specifications in the certificate. See paragraph (e) of this section for requirements related to the parts you must use.

(ii) Instructions to remove the Engine Emission Control Information label and replace it with the certificate holder's new label. Note: In most cases, you must not remove the Locomotive Emission Control Information label.

(2) Provide to the certificate holder the information it identifies as necessary to comply with the requirements of this part. For example, the certificate holder may require you to provide the information specified by § 1033.735.

(e) For parts unrelated to emissions and emission-related parts not addressed by the certificate holder in the emission-related installation instructions, you may use parts from any source. For emission-related parts listed by the certificate holder in the emission-related installation instructions, you must either use the specified parts or parts certified under § 1033.645 for remanufacturing. If you believe that the certificate holder has included as emission-related parts, parts that are actually unrelated to emissions, you may ask us to exclude such parts from the emission-related installation instructions. Note: This paragraph (e) does not apply with respect to parts for maintenance other than remanufacturing; see § 1033.815 for provisions related to general maintenance.

(f) Failure to comply with this section is a violation of 40 CFR 1068.101(a)(1).

§ 1033.810In-use testing program.

(a) Applicability. This section applies to all Class I freight railroads. It does not apply to other owner/operators.

(b) Testing requirements. Annually test a sample of locomotives in your fleet. For purposes of this section, your fleet includes both the locomotives that you own and the locomotives that you are leasing. Use the test procedures in subpart F of this part, unless we approve different procedures.

(1) Except for the cases described in paragraph (b)(2) of this section, test at least 0.075 percent of the average number of locomotives in your fleet during the previous calendar year (i.e., determine the number to be tested by multiplying the number of locomotives in the fleet by 0.00075 and rounding up to the next whole number).

(2) We may allow you to test a smaller number of locomotives if we determine that the number of tests otherwise required by this section is not necessary.

(c) Test locomotive selection. Unless we specify a different option, select test locomotives as specified in paragraph (c)(1) of this section (Option 1). In no case may you exclude locomotives because of visible smoke, a history of durability problems, or other evidence of malmaintenance. You may test more locomotives than this section requires.

(1) Option 1. To the extent possible, select locomotives from each manufacturer and remanufacturer, and from each tier level (e.g., Tier 0, Tier 1 and Tier 2) in proportion to their numbers in the your fleet. Exclude locomotives tested during the previous year. If possible, select locomotives that have been operated for at least 100 percent of their useful lives. Where there are multiple locomotives meeting the requirements of this paragraph (c)(1), randomly select the locomotives to be tested from among those locomotives. If the number of certified locomotives that have been operated for at least 100 percent of their useful lives is not large enough to fulfill the testing requirement, test locomotives still within their useful lives as follows:

(i) Test locomotives in your fleet that are nearest to the end of their useful lives. You may identify such locomotives as a range of values representing the fraction of the useful life already used up for the locomotives.

(ii) For example, you may determine that 20 percent of your fleet has been operated for at least 75 percent of their useful lives. In such a case, select locomotives for testing that have been operated for at least 75 percent of their useful lives.

(2) Option 2. If you hold a certificate for some of your locomotives, you may ask us to allow you to select up to two locomotives as specified in subpart E of this part, and count those locomotives toward both your testing obligations of that subpart and this section.

(3) Option 3. You may ask us to allow you to test locomotives that use parts covered under § 1033.645. If we do, it does not change the number of locomotives that you must test.

(4) Option 4. We may require that you test specific locomotives, including locomotives that do not meet the criteria specified in any of the options in this section. If we do, we will specify which locomotives to test by January 1 of the calendar year for which testing is required.

(d) Reporting requirements. Report all testing done in compliance with the provisions of this section to us within 45 calendar days after the end of each calendar year. At a minimum, include the following:

(1) Your full corporate name and address.

(2) For each locomotive tested, all the following:

(i) Corporate name of the manufacturer and last remanufacturer(s) of the locomotive (including both certificate holder and installer, where different), and the corporate name of the manufacturer or last remanufacturer(s) of the engine if different than that of the manufacturer/remanufacturer(s) of the locomotive.

(ii) Year (and month if known) of original manufacture of the locomotive and the engine, and the manufacturer's model designation of the locomotive and manufacturer's model designation of the engine, and the locomotive identification number.

(iii) Year (and month if known) that the engine last underwent remanufacture, the engine remanufacturer's designation that reflects (or most closely reflects) the engine after the last remanufacture, and the engine family identification.

(iv) The number of MW-hrs and miles (where available) the locomotive has been operated since its last remanufacture.

(v) The emission test results for all measured pollutants.

(e) You do not have to submit a report for any year in which you performed no emission testing under this section.

(f) You may ask us to allow you to submit equivalent emission data collected for other purposes instead of some or all of the test data required by this section. If we allow it in advance, you may report emission data collected using other testing or sampling procedures instead of some or all of the data specified by this section.

(g) Submit all reports to the Designated Compliance Officer.

(h) Failure to comply fully with this section is a violation of 40 CFR 1068.101(a)(2).

All persons who own, operate, or maintain locomotives are subject to this section, except where we specify that a requirement applies to the owner.

(a) Unless we allow otherwise, all owners of locomotives subject to the provisions of this part must ensure that all emission-related maintenance is performed on the locomotives, as specified in the maintenance instructions provided by the certifying manufacturer/remanufacturer in compliance with § 1033.125 (or maintenance that is equivalent to the maintenance specified by the certifying manufacturer/remanufacturer in terms of maintaining emissions performance).

(b) Perform unscheduled maintenance in a timely manner. This includes malfunctions identified through the locomotive's emission control diagnostics system and malfunctions discovered in components of the diagnostics system itself. For most repairs, this paragraph (b) requires that the maintenance be performed no later than the locomotive's next periodic (92-day) inspection. See paragraph (e) of this section, for reductant replenishment requirements in a locomotive equipped with an SCR system.

(c) Use good engineering judgment when performing maintenance of locomotives subject to the provisions of this part. You must perform all maintenance and repair such that you have a reasonable technical basis for believing the locomotive will continue (after the maintenance or repair) to meet the applicable emission standards and FELs to which it was certified.

(d) The owner of the locomotive must keep records of all maintenance and repairs that could reasonably affect the emission performance of any locomotive subject to the provisions of this part. Keep these records for eight years.

(e) For locomotives equipped with emission controls requiring the use of specific fuels, lubricants, or other fluids, proper maintenance includes complying with the manufacturer/remanufacturer's specifications for such fluids when operating the locomotives. This requirement applies without regard to whether misfueling permanently disables the emission controls. The following additional provisions apply for locomotives equipped with SCR systems requiring the use of urea or other reductants:

(1) You must plan appropriately to ensure that reductant will be available to the locomotive during operation.

(2) If the SCR diagnostic indicates (or you otherwise determine) that either reductant supply or reductant quality in the locomotive is inadequate, you must replace the reductant as soon as practical.

(3) If you operate a locomotive without the appropriate urea or other reductant, you must report such operation to us within 30 days. Note that such operation violates the requirement of this paragraph (e); however, we may consider mitigating factors (such as how long the locomotive was operated without the appropriate urea or other reductant) in determining whether to assess penalties for such violations.

(f) Failure to fully comply with this section is a violation of 40 CFR 1068.101(b).

§ 1033.820In-use locomotives.

(a) We may require you to supply in-use locomotives to us for testing. We will specify a reasonable time and place at which you must supply the locomotives and a reasonable period during which we will keep them for testing. We will make reasonable allowances for you to schedule the supply of locomotives to minimize disruption of your operations. The number of locomotives that you must supply is limited as follows:

(1) We will not require a Class I railroad to supply more than five locomotives per railroad per calendar year.

(2) We will not require a non-Class I railroad (or other entity subject to the provisions of this subpart) to supply more than two locomotives per railroad per calendar year. We will request locomotives under this paragraph (a)(2) only for purposes that cannot be accomplished using locomotives supplied under paragraph (a)(1) of this section.

(b) You must make reasonable efforts to supply manufacturers/remanufacturers with the test locomotives needed to fulfill the in-use testing requirements in subpart E of this part.

(c) Failure to fully comply with this section is a violation of 40 CFR 1068.101(a)(2).

§ 1033.825Refueling requirements.

(a) If your locomotive operates using a volatile fuel, your refueling equipment must be designed and used to minimize the escape of fuel vapors. This means you may not use refueling equipment in a way that renders any refueling emission controls inoperative or reduces their effectiveness.

(b) If your locomotive operates using a gaseous fuel, the hoses used to refuel it may not be designed to be bled or vented to the atmosphere under normal operating conditions.

(c) Failing to fully comply with the requirements of this section is a violation of 40 CFR 1068.101(b).

The following definitions apply to this part. The definitions apply to all subparts unless we note otherwise. All undefined terms have the meaning the Clean Air Act gives to them. The definitions follow:

Adjustable parameter means any device, system, or element of design that someone can adjust (including those which are difficult to access) and that, if adjusted, may affect emissions or locomotive performance during emission testing or normal in-use operation. This includes, but is not limited to, parameters related to injection timing and fueling rate. You may ask us to exclude a parameter if you show us that it will not be adjusted in a way that affects emissions during in-use operation.

Aftertreatment means relating to a catalytic converter, particulate filter, or any other system, component, or technology mounted downstream of the exhaust valve (or exhaust port) whose design function is to reduce emissions in the locomotive exhaust before it is exhausted to the environment. Exhaust-gas recirculation (EGR) is not aftertreatment.

Alcohol fuel means a fuel consisting primarily (more than 50 percent by weight) of one or more alcohols: e.g., methyl alcohol, ethyl alcohol.

Alcohol-fueled locomotive means a locomotive with an engine that is designed to run using an alcohol fuel. For purposes of this definition, alcohol fuels do not include fuels with a nominal alcohol content below 25 percent by volume.

Alternator/generator efficiency means the ratio of the electrical power output from the alternator/generator to the mechanical power input to the alternator/generator at the operating point. Note that the alternator/generator efficiency may be different at different operating points. For example, the Institute of Electrical and Electronic Engineers Standard 115 (“Test Procedures for Synchronous Machines”) is an appropriate test procedure for determining alternator/generator efficiency. Other methods may also be used consistent with good engineering judgment.

Applicable emission standard or applicable standard means a standard to which a locomotive is subject; or, where a locomotive has been or is being certified to another standard or FEL, the FEL or other standard to which the locomotive has been or is being certified is the applicable standard. This definition does not apply to Subpart H of this part.

Auxiliary emission control device means any element of design that senses temperature, locomotive speed, engine RPM, transmission gear, or any other parameter for the purpose of activating, modulating, delaying, or deactivating the operation of any part of the emission-control system.

Auxiliary engine means a nonroad engine that provides hotel power or power during idle, but does not provide power to propel the locomotive.

Averaging means the exchange of emission credits among engine families within a given manufacturer's, or remanufacturer's product line.

Banking means the retention of emission credits by a credit holder for use in future calendar year averaging or trading as permitted by the regulations in this part.

Brake power means the sum of the alternator/generator input power and the mechanical accessory power, excluding any power required to circulate engine coolant, circulate engine lubricant, supply fuel to the engine, or operate aftertreatment devices.

Calibration means the set of specifications, including tolerances, specific to a particular design, version, or application of a component, or components, or assembly capable of functionally describing its operation over its working range.

Carryover means relating to certification based on emission data generated from an earlier model year as described in § 1033.235(d).

Certification means the process of obtaining a certificate of conformity for an engine family that complies with the emission standards and requirements in this part, or relating to that process.

Certified emission level means the highest deteriorated emission level in an engine family for a given pollutant from a given test cycle.

Class I freight railroad means a Class I railroad that primarily transports freight rather than passengers.

Class I railroad means a railroad that has been classified as a Class I railroad by the Surface Transportation Board.

Class II railroad means a railroad that has been classified as a Class II railroad by the Surface Transportation Board.

Class III railroad means a railroad that has been classified as a Class III railroad by the Surface Transportation Board.

Clean Air Act means the Clean Air Act, as amended, 42 U.S.C. 7401-7671q.

Configuration means a unique combination of locomotive hardware and calibration within an engine family. Locomotives within a single configuration differ only with respect to normal production variability (or factors unrelated to engine performance or emissions).

Crankcase emissions means airborne substances emitted to the atmosphere from any part of the locomotive crankcase's ventilation or lubrication systems. The crankcase is the housing for the crankshaft and other related internal parts.

Days means calendar days, unless otherwise specified. For example, where we specify working days, we mean calendar days excluding weekends and U.S. national holidays.

Design certify or certify by design means to certify a locomotive based on inherent design characteristics rather than your test data, such as allowed under § 1033.625. All other requirements of this part apply for such locomotives.

Deteriorated emission level means the emission level that results from applying the appropriate deterioration factor to the official emission result of the emission-data locomotive.

Deterioration factor means the relationship between emissions at the end of useful life and emissions at the low-hour test point, expressed in one of the following ways:

(1) For multiplicative deterioration factors, the ratio of emissions at the end of useful life to emissions at the low-hour test point.

(2) For additive deterioration factors, the difference between emissions at the end of useful life and emissions at the low-hour test point.

Discrete-mode means relating to the discrete-mode type of steady-state test described in § 1033.515.

Emission control system means any device, system, or element of design that controls or reduces the regulated emissions from a locomotive.

Emission credits represent the amount of emission reduction or exceedance, by a locomotive engine family, below or above the emission standard, respectively. Emission reductions below the standard are considered as “positive credits,” while emission exceedances above the standard are considered as “negative credits.” In addition, “projected credits” refer to emission credits based on the projected applicable production/sales volume of the engine family. “Reserved credits” are emission credits generated within a calendar year waiting to be reported to EPA at the end of the calendar year. “Actual credits” refer to emission credits based on actual applicable production/sales volume as contained in the end-of-year reports submitted to EPA.

Emission-data locomotive means a locomotive or engine that is tested for certification. This includes locomotives tested to establish deterioration factors.

Engine used in a locomotive means an engine incorporated into a locomotive or intended for incorporation into a locomotive (whether or not it is used for propelling the locomotive).

Engineering analysis means a summary of scientific and/or engineering principles and facts that support a conclusion made by a manufacturer/remanufacturer, with respect to compliance with the provisions of this part.

EPA Enforcement Officer means any officer or employee of the Environmental Protection Agency so designated in writing by the Administrator or his/her designee.

Exempted means relating to a locomotive that is not required to meet otherwise applicable standards. Exempted locomotives must conform to regulatory conditions specified for an exemption in this part 1033 or in 40 CFR part 1068. Exempted locomotives are deemed to be “subject to” the standards of this part, even though they are not required to comply with the otherwise applicable requirements. Locomotives exempted with respect to a certain tier of standards may be required to comply with an earlier tier of standards as a condition of the exemption; for example, locomotives exempted with respect to Tier 3 standards may be required to comply with Tier 2 standards.

Excluded means relating to a locomotive that either has been determined not to be a locomotive (as defined in this section) or otherwise excluded under section § 1033.5. Excluded locomotives are not subject to the standards of this part.

Exhaust emissions means substances (i.e., gases and particles) emitted to the atmosphere from any opening downstream from the exhaust port or exhaust valve of a locomotive engine.

Exhaust-gas recirculation means a technology that reduces emissions by routing exhaust gases that had been exhausted from the combustion chamber(s) back into the locomotive to be mixed with incoming air before or during combustion. The use of valve timing to increase the amount of residual exhaust gas in the combustion chamber(s) that is mixed with incoming air before or during combustion is not considered exhaust-gas recirculation for the purposes of this part.

Freshly manufactured locomotive means a new locomotive that contains fewer than 25 percent previously used parts (weighted by the dollar value of the parts) as described in § 1033.640.

Freshly manufactured engine means a new engine that has not been remanufactured. An engine becomes freshly manufactured when it is originally manufactured.

Family emission limit (FEL) means an emission level declared by the manufacturer/remanufacturer to serve in place of an otherwise applicable emission standard under the ABT program in subpart H of this part. The family emission limit must be expressed to the same number of decimal places as the emission standard it replaces. The family emission limit serves as the emission standard for the engine family with respect to all required testing.

Fuel system means all components involved in transporting, metering, and mixing the fuel from the fuel tank to the combustion chamber(s), including the fuel tank, fuel tank cap, fuel pump, fuel filters, fuel lines, carburetor or fuel-injection components, and all fuel-system vents.

Fuel type means a general category of fuels such as diesel fuel or natural gas. There can be multiple grades within a single fuel type, such as high-sulfur or low-sulfur diesel fuel.

Gaseous fuel means a fuel which is a gas at standard temperature and pressure. This includes both natural gas and liquefied petroleum gas.

Good engineering judgment means judgments made consistent with generally accepted scientific and engineering principles and all available relevant information. See 40 CFR 1068.5 for the administrative process we use to evaluate good engineering judgment.

Green Engine Factor means a factor that is applied to emission measurements from a locomotive or locomotive engine that has had little or no service accumulation. The Green Engine Factor adjusts emission measurements to be equivalent to emission measurements from a locomotive or locomotive engine that has had approximately 300 hours of use.

(2) For testing, high-sulfur diesel fuel has the meaning given in 40 CFR part 1065.

Hotel power means the power provided by an engine on a locomotive to operate equipment on passenger cars of a train; e.g., heating and air conditioning, lights, etc.

Hydrocarbon (HC) means the hydrocarbon group (THC, NMHC, or THCE) on which the emission standards are based for each fuel type as described in § 1033.101.

Identification number means a unique specification (for example, a model number/serial number combination) that allows someone to distinguish a particular locomotive from other similar locomotives.

Idle speed means the speed, expressed as the number of revolutions of the crankshaft per unit of time (e.g., rpm), at which the engine is set to operate when not under load for purposes of propelling the locomotive. There are typically one or two idle speeds on a locomotive as follows:

(1) Normal idle speed means the idle speed for the idle throttle-notch position for locomotives that have one throttle-notch position, or the highest idle speed for locomotives that have two idle throttle-notch positions.

Inspect and qualify means to determine that a previously used component or system meets all applicable criteria listed for the component or system in a certificate of conformity for remanufacturing (such as to determine that the component or system is functionally equivalent to one that has not been used previously).

Installer means an individual or entity that assembles remanufactured locomotives or locomotive engines.

Line-haul locomotive means a locomotive that does not meet the definition of switch locomotive. Note that this includes both freight and passenger locomotives.

Locomotive means a self-propelled piece of on-track equipment designed for moving or propelling cars that are designed to carry freight, passengers or other equipment, but which itself is not designed or intended to carry freight, passengers (other than those operating the locomotive) or other equipment. The following other equipment are not locomotives (see 40 CFR parts 86, 89, and 1039 for this diesel-powered equipment):

(1) Equipment designed for operation both on highways and rails is not a locomotive.

(2) Specialized railroad equipment for maintenance, construction, post-accident recovery of equipment, and repairs; and other similar equipment, are not locomotives.

(3) Vehicles propelled by engines with total rated power of less than 750 kW (1006 hp) are not locomotives, unless the owner (which may be a manufacturer) chooses to have the equipment certified to meet the requirements of this part (under § 1033.615). Where equipment is certified as a locomotive pursuant to this paragraph (3), it is subject to the requirements of this part for the remainder of its service life. For locomotives propelled by two or more engines, the total rated power is the sum of the rated power of each engine.

Locomotive engine means an engine that propels a locomotive.

Low-hour means relating to a locomotive with stabilized emissions and represents the undeteriorated emission level. This would generally involve less than 300 hours of operation.

Low mileage locomotive means a locomotive during the interval between the time that normal assembly operations and adjustments are completed and the time that either 10,000 miles of locomotive operation or 300 additional operating hours have been accumulated (including emission testing if performed). Note that we may deem locomotives with additional operation to be low mileage locomotives, consistent with good engineering judgment.

(2) For testing, low-sulfur diesel fuel has the meaning given in 40 CFR part 1065.

Malfunction means a condition in which the operation of a component in a locomotive or locomotive engine occurs in a manner other than that specified by the certifying manufacturer/remanufacturer (e.g., as specified in the application for certification); or the operation of the locomotive or locomotive engine in that condition.

Manufacture means the physical and engineering process of designing, constructing, and assembling a locomotive or locomotive engine.

Manufacturer has the meaning given in section 216(1) of the Clean Air Act with respect to freshly manufactured locomotives or engines. In general, this term includes any person who manufactures a locomotive or engine for sale in the United States or otherwise introduces a new locomotive or engine into commerce in the United States. This includes importers who import locomotives or engines for resale.

Manufacturer/remanufacturer means the manufacturer of a freshly manufactured locomotive or engine or the remanufacturer of a remanufactured locomotive or engine, as applicable.

Model year means a calendar year in which a locomotive is manufactured or remanufactured.

New, when relating to a locomotive or locomotive engine, has the meaning given in paragraph (1) of this definition, except as specified in paragraph (2) of this definition:

(1) A locomotive or engine is new if its equitable or legal title has never been transferred to an ultimate purchaser. Where the equitable or legal title to a locomotive or engine is not transferred prior to its being placed into service, the locomotive or engine ceases to be new when it is placed into service. A locomotive or engine also becomes new if it is remanufactured or refurbished (as defined in this section). A remanufactured locomotive or engine ceases to be new when placed back into service. With respect to imported locomotives or locomotive engines, the term “new locomotive” or “new locomotive engine” also means a locomotive or locomotive engine that is not covered by a certificate of conformity under this part or 40 CFR part 92 at the time of importation, and that was manufactured or remanufactured after the effective date of the emission standards in 40 CFR part 92 which would have been applicable to such locomotive or engine had it been manufactured or remanufactured for importation into the United States. Note that replacing an engine in one locomotive with an unremanufactured used engine from a different locomotive does not make a locomotive new.

(2) The provisions of paragraph (1) of this definition do not apply for the following cases:

(i) Locomotives and engines that were originally manufactured before January 1, 1973 are not considered to become new when remanufactured unless they have been upgraded (as defined in this section). The provisions of paragraph (1) of this definition apply for locomotives that have been upgraded.

(ii) Locomotives that are owned and operated by a small railroad and that have never been certified (i.e., manufactured or remanufactured into a certified configuration) are not considered to become new when remanufactured. The provisions of paragraph (1) of this definition apply for locomotives that have previously been remanufactured into a certified configuration.

(iii) Locomotives originally certified under § 1033.150(e) do not become new when remanufactured, except as specified in § 1033.615.

(iv) Locomotives that operate only on non-standard gauge rails do not become new when remanufactured if no certified remanufacturing system is available for them.

Nonconforming means relating to a locomotive that is not covered by a certificate of conformity prior to importation or being offered for importation (or for which such coverage has not been adequately demonstrated to EPA); or a locomotive which was originally covered by a certificate of conformity, but which is not in a certified configuration, or otherwise does not comply with the conditions of that certificate of conformity. (Note: Domestic locomotives and locomotive engines not covered by a certificate of conformity prior to their introduction into U.S. commerce are considered to be noncomplying locomotives and locomotive engines.)

Non-locomotive-specific engine means an engine that is sold for and used in non-locomotive applications much more than for locomotive applications.

Nonmethane hydrocarbon has the meaning given in 40 CFR 1065.1001. This generally means the difference between the emitted mass of total hydrocarbons and the emitted mass of methane.

Official emission result means the measured emission rate for an emission-data locomotive on a given duty cycle before the application of any deterioration factor, but after the application of regeneration adjustment factors, Green Engine Factors, and/or humidity correction factors.

Opacity means the fraction of a beam of light, expressed in percent, which fails to penetrate a plume of smoke, as measured by the procedure specified in § 1033.525.

Original manufacture means the event of freshly manufacturing a locomotive or locomotive engine. The date of original manufacture is the date of final assembly, except as provided in § 1033.640. Where a locomotive is manufactured under § 1033.620(b), the date of original manufacture is the date on which the final assembly of locomotive was originally scheduled.

Original remanufacture means the first remanufacturing of a locomotive at which the locomotive is subject to the emission standards of this part.

Owner/operator means the owner and/or operator of a locomotive.

Owners manual means a written or electronic collection of instructions provided to ultimate purchasers to describe the basic operation of the locomotive.

Oxides of nitrogen has the meaning given in 40 CFR part 1065.

Particulate trap means a filtering device that is designed to physically trap all particulate matter above a certain size.

Passenger locomotive means a locomotive designed and constructed for the primary purpose of propelling passenger trains, and providing power to the passenger cars of the train for such functions as heating, lighting and air conditioning.

Placed into service means put into initial use for its intended purpose after becoming new.

Power assembly means the components of an engine in which combustion of fuel occurs, and consists of the cylinder, piston and piston rings, valves and ports for admission of charge air and discharge of exhaust gases, fuel injection components and controls, cylinder head and associated components.

Primary fuel means the type of fuel (e.g., diesel fuel) that is consumed in the greatest quantity (mass basis) when the locomotive is operated in use.

Produce means to manufacture or remanufacture. Where a certificate holder does not actually assemble the locomotives or locomotive engines that it manufactures or remanufactures, produce means to allow other entities to assemble locomotives under the certificate holder's certificate.

Railroad means a commercial entity that operates locomotives to transport passengers or freight.

Ramped-modal means relating to the ramped-modal type of testing in subpart F of this part.

Rated power has the meaning given in § 1033.140.

Refurbish has the meaning given in § 1033.640.

Remanufacture means one of the following:

(1)(i) To replace, or inspect and qualify, each and every power assembly of a locomotive or locomotive engine, whether during a single maintenance event or cumulatively within a five-year period.

(ii) To upgrade a locomotive or locomotive engine.

(iii) To convert a locomotive or locomotive engine to enable it to operate using a fuel other than it was originally manufactured to use.

(iv) To install a remanufactured engine or a freshly manufactured engine into a previously used locomotive.

(v) To repair a locomotive engine that does not contain power assemblies to a condition that is equivalent to or better than its original condition with respect to reliability and fuel consumption.

(2) Remanufacture also means the act of remanufacturing.

Remanufacture system or remanufacturing system means all components (or specifications for components) and instructions necessary to remanufacture a locomotive or locomotive engine in accordance with applicable requirements of this part or 40 CFR part 92.

Remanufactured locomotive means either a locomotive powered by a remanufactured locomotive engine, a repowered locomotive, or a refurbished locomotive.

Remanufactured locomotive engine means a locomotive engine that has been remanufactured.

Remanufacturer has the meaning given to “manufacturer” in section 216(1) of the Clean Air Act with respect to remanufactured locomotives. (See §§ 1033.1 and 1033.601 for applicability of this term.) This term includes:

(1) Any person that is engaged in the manufacture or assembly of remanufactured locomotives or locomotive engines, such as persons who:

(i) Design or produce the emission-related parts used in remanufacturing.

(ii) Install parts in an existing locomotive or locomotive engine to remanufacture it.

(iii) Own or operate the locomotive or locomotive engine and provide specifications as to how an engine is to be remanufactured (i.e., specifying who will perform the work, when the work is to be performed, what parts are to be used, or how to calibrate the adjustable parameters of the engine).

Repower means replacement of the engine in a previously used locomotive with a freshly manufactured locomotive engine. See § 1033.640.

Repowered locomotive means a locomotive that has been repowered with a freshly manufactured engine.

Revoke has the meaning given in 40 CFR 1068.30. In general this means to terminate the certificate or an exemption for an engine family.

Round means to round numbers as specified in 40 CFR 1065.1001.

Service life means the total life of a locomotive. Service life begins when the locomotive is originally manufactured and continues until the locomotive is permanently removed from service.

Small manufacturer/remanufacturer means a manufacturer/remanufacturer with 1,000 or fewer employees. For purposes of this part, the number of employees includes all employees of the manufacturer/remanufacturer's parent company, if applicable.

Small railroad means a railroad meeting the criterion of paragraph (1) of this definition, but not either of the criteria of paragraphs (2) and (3) of this definition.

(1) To be considered a small railroad, a railroad must qualify as a small business under the Small Business Administration's regulations in 13 CFR part 121.

(2) Class I and Class II railroads (and their subsidiaries) are not small railroads.

(3) Intercity passenger and commuter railroads are excluded from this definition of small railroad. Note that this paragraph (3) does not exclude tourist railroads.

Specified adjustable range means the range of allowable settings for an adjustable component specified by a certificate of conformity.

Specified by a certificate of conformity or specified in a certificate of conformity means stated or otherwise specified in a certificate of conformity or an approved application for certification.

Sulfur-sensitive technology means an emission-control technology that would experience a significant drop in emission control performance or emission-system durability when a locomotive is operated on low-sulfur fuel with a sulfur concentration of 300 to 500 ppm as compared to when it is operated on ultra low-sulfur fuel (i.e., fuel with a sulfur concentration less than 15 ppm). Exhaust-gas recirculation is not a sulfur-sensitive technology.

Suspend has the meaning given in 40 CFR 1068.30. In general this means to temporarily discontinue the certificate or an exemption for an engine family.

Switch locomotive means a locomotive that is powered by an engine with a maximum rated power (or a combination of engines having a total rated power) of 2300 hp or less. Include auxiliary engines in your calculation of total power if the engines are permanently installed on the locomotive and can be operated while the main propulsion engine is operating. Do not count the power of auxiliary engines that operate only to reduce idling time of the propulsion engine.

Test locomotive means a locomotive or engine in a test sample.

Test sample means the collection of locomotives or engines selected from the population of an engine family for emission testing. This may include testing for certification, production-line testing, or in-use testing.

Total hydrocarbon has the meaning given in 40 CFR 1065.1001. This generally means the combined mass of organic compounds measured by the specified procedure for measuring total hydrocarbon, expressed as a hydrocarbon with an atomic hydrogen-to-carbon ratio of 1.85:1.

Total hydrocarbon equivalent has the meaning given in 40 CFR 1065.1001. This generally means the sum of the carbon mass contributions of non-oxygenated hydrocarbons, alcohols and aldehydes, or other organic compounds that are measured separately as contained in a gas sample, expressed as exhaust hydrocarbon from petroleum-fueled locomotives. The atomic hydrogen-to-carbon mass ratio of the equivalent hydrocarbon is 1.85:1.

Ultimate purchaser means the first person who in good faith purchases a new locomotive for purposes other than resale.

(2) For testing, ultra low-sulfur diesel fuel has the meaning given in 40 CFR part 1065.

Upcoming model year means for an engine family the model year after the one currently in production.

Upgrade means one of the following types of remanufacturing.

(1) Repowering a locomotive that was originally manufactured prior to January 1, 1973.

(2) Refurbishing a locomotive that was originally manufactured prior to January 1, 1973 in a manner that is not freshly manufacturing.

(3) Modifying a locomotive that was originally manufactured prior to January 1, 1973 (or a locomotive that was originally manufactured on or after January 1, 1973, and that is not subject to the emission standards of this part), such that it is intended to comply with the Tier 0 standards. See § 1033.615.

Useful life means the period during which the locomotive engine is designed to properly function in terms of reliability and fuel consumption, without being remanufactured, specified as work output or miles. It is the period during which a locomotive is required to comply with all applicable emission standards. See § 1033.101(g).

Void has the meaning given in 40 CFR 1068.30. In general this means to invalidate a certificate or an exemption both retroactively and prospectively.

Volatile fuel means a volatile liquid fuel or any fuel that is a gas at atmospheric pressure. Gasoline, natural gas, and LPG are volatile fuels.

Volatile liquid fuel means any liquid fuel other than diesel or biodiesel that is a liquid at atmospheric pressure and has a Reid Vapor Pressure higher than 2.0 pounds per square inch.

We (us, our) means the Administrator of the Environmental Protection Agency and any authorized representatives.

(a) Clearly show what you consider confidential by marking, circling, bracketing, stamping, or some other method.

(b) We will store your confidential information as described in 40 CFR part 2. Also, we will disclose it only as specified in 40 CFR part 2. This applies both to any information you send us and to any information we collect from inspections, audits, or other site visits.

(c) If you send us a second copy without the confidential information, we will assume it contains nothing confidential whenever we need to release information from it.

(d) If you send us information without claiming it is confidential, we may make it available to the public without further notice to you, as described in 40 CFR 2.204.

§ 1033.920How to request a hearing.

(a) You may request a hearing under certain circumstances, as described elsewhere in this part. To do this, you must file a written request, including a description of your objection and any supporting data, within 30 days after we make a decision.

(b) For a hearing you request under the provisions of this part, we will approve your request if we find that your request raises a substantial factual issue.

(c) If we agree to hold a hearing, we will use the procedures specified in 40 CFR part 1068, subpart G.

§ 1033.925Reporting and recordkeeping requirements.

Under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.), the Office of Management and Budget approves the reporting and recordkeeping specified in the applicable regulations. Failing to properly report information and keep the records we specify violates 40 CFR 1068.101(a)(2), which may involve civil or criminal penalties. The following items illustrate the kind of reporting and recordkeeping we require for engines regulated under this part:

(a) We specify the following requirements related to engine certification in this part 1033:

(1) In § 1033.150 we state the requirements for interim provisions.

(2) In subpart C of this part we identify a wide range of information required to certify engines.

[75 FR 22987, Apr. 30, 2010]Pt. 1039PART 1039—CONTROL OF EMISSIONS FROM NEW AND IN-USE NONROAD COMPRESSION-IGNITION ENGINESSubpart A—Overview and ApplicabilitySec.1039.1Does this part apply for my engines?1039.2Who is responsible for compliance?1039.5Which engines are excluded from this part's requirements?1039.10How is this part organized?1039.15Do any other regulation parts apply to me?1039.20What requirements from this part apply to excluded stationary engines?1039.30Submission of information.Subpart B—Emission Standards and Related Requirements1039.101What exhaust emission standards must my engines meet after the 2014 model year?1039.102What exhaust emission standards and phase-in allowances apply for my engines in model year 2014 and earlier?1039.104Are there interim provisions that apply only for a limited time?1039.105What smoke standards must my engines meet?1039.107What evaporative emission standards and requirements apply?1039.110[Reserved]1039.115What other requirements apply? 1039.120What emission-related warranty requirements apply to me?1039.125What maintenance instructions must I give to buyers?1039.130What installation instructions must I give to equipment manufacturers?1039.135How must I label and identify the engines I produce?1039.140What is my engine's maximum engine power?Subpart C—Certifying Engine Families1039.201What are the general requirements for obtaining a certificate of conformity?1039.205What must I include in my application?1039.210May I get preliminary approval before I complete my application?1039.220How do I amend the maintenance instructions in my application?1039.225How do I amend my application for certification?1039.230How do I select engine families?1039.235What testing requirements apply for certification?1039.240How do I demonstrate that my engine family complies with exhaust emission standards?1039.245How do I determine deterioration factors from exhaust durability testing?1039.250What records must I keep and what reports must I send to EPA?1039.255What decisions may EPA make regarding my certificate of conformity?Subpart D [Reserved]Subpart E—In-use Testing1039.401General provisions.Subpart F—Test Procedures1039.501How do I run a valid emission test?1039.505How do I test engines using steady-state duty cycles, including ramped-modal testing?1039.510Which duty cycles do I use for transient testing?1039.515What are the test procedures related to not-to-exceed standards?1039.520What testing must I perform to establish deterioration factors?1039.525How do I adjust emission levels to account for infrequently regenerating aftertreatment devices?Subpart G—Special Compliance Provisions1039.601What compliance provisions apply to these engines?1039.605What provisions apply to engines certified under the motor-vehicle program?1039.610What provisions apply to vehicles certified under the motor-vehicle program?1039.615What special provisions apply to engines using noncommercial fuels?1039.620What are the provisions for exempting engines used solely for competition?1039.625What requirements apply under the program for equipment-manufacturer flexibility?1039.626What special provisions apply to equipment imported under the equipment-manufacturer flexibility program?1039.627What are the incentives for equipment manufacturers to use cleaner engines?1039.630What are the economic hardship provisions for equipment manufacturers?1039.635What are the hardship provisions for engine manufacturers?1039.640What special provisions apply to branded engines?1039.645What special provisions apply to engines used for transportation refrigeration units?1039.650[Reserved]1039.655What special provisions apply to engines sold in Guam, American Samoa, or the Commonwealth of the Northern Mariana Islands?1039.660What special provisions apply to Independent Commercial Importers?Subpart H—Averaging, Banking, and Trading for Certification1039.701General provisions.1039.705How do I generate and calculate emission credits?1039.710How do I average emission credits?1039.715How do I bank emission credits?1039.720How do I trade emission credits?1039.725What must I include in my application for certification?1039.730What ABT reports must I send to EPA?1039.735What records must I keep?1039.740What restrictions apply for using emission credits?1039.745What can happen if I do not comply with the provisions of this subpart?Subpart I—Definitions and Other Reference Information1039.801What definitions apply to this part?1039.805What symbols, acronyms, and abbreviations does this part use?1039.815What provisions apply to confidential information?1039.820How do I request a hearing?1039.825What reporting and recordkeeping requirements apply under this part?Appendix I to Part 1039 [Reserved]Appendix II to Part 1039—Steady-state Duty CyclesAppendix III to Part 1039 [Reserved]Appendix IV to Part 1039 [Reserved]Appendix V to Part 1039 [Reserved]Appendix VI to Part 1039—Nonroad Compression-ignition Composite Transient CycleAuthority:

42 U.S.C. 7401-7671q.

Source:

69 FR 39213, June 29, 2004, unless otherwise noted.

Subpart A—Overview and Applicability§ 1039.1Does this part apply for my engines?

(a) The regulations in this part 1039 apply for all new, compression-ignition nonroad engines (defined in § 1039.801), except as provided in § 1039.5.

(b) This part 1039 applies as follows:

(1) This part 1039 applies for all engines subject to the emission standards specified in subpart B of this part starting with the model years noted in the following table:

Table 1 of § 1039.1—Part 1039 Applicability by Model YearPower categoryModel yearkW < 191 2008 19 ≤ kW < 562 200856 ≤ kW < 1302012130 ≤ kW ≤ 5602011kW > 56020111 As described in § 1039.102, some engines below 19 kW may not be subject to the emission standards in this part until the 2010 model year.2 As described in § 1039.102, some engines in the 19-56 kW power category may not be subject to the emission standards in this part until the 2012 model year.

(2) If you use the provisions of § 1039.104(a) to certify an engine to the emission standards of this part before the model years shown in Table 1 of this section, all the requirements of this part apply for those engines.

(3) See 40 CFR part 89 for requirements that apply to engines not yet subject to the requirements of this part 1039.

(4) This part 1039 applies for other compression-ignition engines as follows:

(i) The provisions of paragraph (c) of this section and § 1039.801 apply for stationary engines beginning January 1, 2006.

(ii) The provisions of § 1039.620 and § 1039.801 apply for engines used solely for competition beginning January 1, 2006.

(c) The definition of nonroad engine in 40 CFR 1068.30 excludes certain engines used in stationary applications. These engines may be required by subpart IIII of 40 CFR part 60 to comply with some of the provisions of this part 1039; otherwise, these engines are only required to comply with the requirements in § 1039.20. In addition, the prohibitions in 40 CFR 1068.101 restrict the use of stationary engines for nonstationary purposes unless they are certified under this part 1039, or under the provisions of 40 CFR part 89 or 40 CFR part 94, to the same standards that would apply to nonroad engines for the same model year.

(d) In certain cases, the regulations in this part 1039 apply to engines at or above 250 kW that would otherwise be covered by 40 CFR part 1048. See 40 CFR 1048.620 for provisions related to this allowance.

The regulations in this part 1039 contain provisions that affect both engine manufacturers and others. However, the requirements of this part are generally addressed to the engine manufacturer. The term “you” generally means the engine manufacturer, as defined in § 1039.801, especially for issues related to certification.

(a) Locomotive engines. (1) The following locomotive engines are not subject to the provisions of this part 1039:

(i) Engines in locomotives certified under 40 CFR part 1033.

(ii) Engines in locomotives that are exempt from the standards of 40 CFR part 92 or 1033 pursuant to the provisions of 40 CFR part 1033 or 1068 (except for the provisions of 40 CFR 1033.150(e)).

(2) The following locomotive engines are subject to the provisions of this part 1039:

(i) Engines in locomotives exempt from 40 CFR part 1033 pursuant to the provisions of 40 CFR 1033.150(e).

(ii) Locomotive engines excluded from the definition of locomotive in 40 CFR 1033.901.

(b) Marine engines. (1) The following marine engines are not subject to the provisions of this part 1039:

(i) Engines subject to the standards of 40 CFR part 94.

(ii) Engines not subject to the standards of 40 CFR part 94 only because they were produced before the standards of 40 CFR part 94 started to apply.

(iii) Engines that are exempt from the standards of 40 CFR part 94 pursuant to the provisions of 40 CFR part 94 (except for the provisions of 40 CFR 94.907 or 94.912). For example, an engine that is exempt under 40 CFR 94.906 because it is a manufacturer-owned engine is not subject to the provisions of this part 1039.

(iv) Engines with rated power below 37 kW.

(v) Engines on foreign vessels.

(2) Marine engines are subject to the provisions of this part 1039 if they are exempt from 40 CFR part 94 based on the engine-dressing provisions of 40 CFR 94.907 or the common-family provisions of 40 CFR 94.912.

(c) Mining engines. Engines used in underground mining or in underground mining equipment and regulated by the Mining Safety and Health Administration in 30 CFR parts 7, 31, 32, 36, 56, 57, 70, and 75 are not subject to the provisions of this part 1039.

(d) Hobby engines. Engines installed in reduced-scale models of vehicles that are not capable of transporting a person are not subject to the provisions of this part 1039.

(e) Engines used in recreational vehicles. Engines certified to meet the requirements of 40 CFR part 1051 or are otherwise subject to 40 CFR part 1051 (for example, engines used in snowmobiles and all-terrain vehicles) are not subject to the provisions of this part 1039.

(a) Subpart A of this part defines the applicability of part 1039 and gives an overview of regulatory requirements.

(b) Subpart B of this part describes the emission standards and other requirements that must be met to certify engines under this part. Note that § 1039.102 and § 1039.104 discuss certain interim requirements and compliance provisions that apply only for a limited time.

(c) Subpart C of this part describes how to apply for a certificate of conformity.

(d) [Reserved]

(e) Subpart E of this part describes general provisions for testing in-use engines.

(f) Subpart F of this part describes how to test your engines (including references to other parts of the Code of Federal Regulations).

(g) Subpart G of this part and 40 CFR part 1068 describe requirements, prohibitions, and other provisions that apply to engine manufacturers, equipment manufacturers, owners, operators, rebuilders, and all others.

(h) Subpart H of this part describes how you may generate and use emission credits to certify your engines.

(i) Subpart I of this part contains definitions and other reference information.

(a) Part 1065 of this chapter describes procedures and equipment specifications for testing engines to measure exhaust emissions. Subpart F of this part 1039 describes how to apply the provisions of part 1065 of this chapter to determine whether engines meet the exhaust emission standards in this part.

(b) The requirements and prohibitions of part 1068 of this chapter apply to everyone, including anyone who manufactures, imports, installs, owns, operates, or rebuilds any of the engines subject to this part 1039, or equipment containing these engines. Part 1068 of this chapter describes general provisions, including these seven areas:

The provisions of this section apply for engines built on or after January 1, 2006.

(a) You must add a permanent label or tag to each new engine you produce or import that is excluded under § 1039.1(c) as a stationary engine and is not required by 40 CFR part 60, subpart IIII, to meet the requirements of this part 1039, or the requirements of parts 89 or 94, that are equivalent to the requirements applicable to nonroad or marine engines for the same model year. To meet labeling requirements, you must do the following things:

(1) Attach the label or tag in one piece so no one can remove it without destroying or defacing it.

(2) Secure it to a part of the engine needed for normal operation and not normally requiring replacement.

(3) Make sure it is durable and readable for the engine's entire life.

(4) Write it in English.

(5) Follow the requirements in § 1039.135(g) regarding duplicate labels if the engine label is obscured in the final installation.

(b) Engine labels or tags required under this section must have the following information:

(1) Include the heading “EMISSION CONTROL INFORMATION.”

(2) Include your full corporate name and trademark. You may instead include the fill corporate name and trademark of another company you choose to designate.

(3) State the engine displacement (in liters) and maximum engine power (or in the case of fire pumps, NFPA nameplate engine power).

(4) State: “THIS ENGINE IS EXEMPTED FROM THE REQUIREMENTS OF 40 CFR PARTS 89 AND 1039 AS A “STATIONARY ENGINE.” INSTALLING OR USING THIS ENGINE IN ANY OTHER APPLICATION MAY BE A VIOLATION OF FEDERAL LAW SUBJECT TO CIVIL PENALTY.”

(c) Stationary engines required by 40 CFR part 60, subpart IIII, to meet the requirements of this part 1039, or parts 89 or 94, must meet the labeling requirements of 40 CFR 60.4210.

(a) This part includes various requirements to record data or other information. Refer to § 1039.825 and 40 CFR 1068.25 regarding recordkeeping requirements. Unless we specify otherwise, store these records in any format and on any media and keep them readily available for one year after you send an associated application for certification, or one year after you generate the data if they do not support an application for certification. You must promptly send us organized, written records in English if we ask for them. We may review them at any time.

(b) The regulations in § 1039.255 and 40 CFR 1068.101 describe your obligation to report truthful and complete information and the consequences of failing to meet this obligation. This includes information not related to certification.

(c) Send all reports and requests for approval to the Designated Compliance Officer (see § 1039.801).

(d) Any written information we require you to send to or receive from another company is deemed to be a required record under this section. Such records are also deemed to be submissions to EPA. We may require you to send us these records whether or not you are a certificate holder.

The exhaust emission standards of this section apply after the 2014 model year. Certain of these standards also apply for model year 2014 and earlier. This section presents the full set of emission standards that apply after all the transition and phase-in provisions of § 1039.102 and § 1039.104 expire. See § 1039.102 and 40 CFR 89.112 for exhaust emission standards that apply to 2014 and earlier model years. Section 1039.105 specifies smoke standards.

(a) Emission standards for transient testing. Transient exhaust emissions from your engines may not exceed the applicable emission standards in Table 1 of this section. Measure emissions using the applicable transient test procedures described in subpart F of this part. The following engines are not subject to the transient standards in this paragraph (a):

(1) Engines above 560 kW.

(2) Constant-speed engines.

(b) Emission standards for steady-state testing. Steady-state exhaust emissions from your engines may not exceed the applicable emission standards in Table 1 of this section. Measure emissions using the applicable steady-state test procedures described in subpart F of this part.

(c) Optional PM standard for engines below 8 kW. You may certify hand-startable, air-cooled, direct injection engines below 8 kW to an optional Tier 4 PM standard of 0.60 g/kW-hr. The term hand-startable generally refers to engines that are started using a hand crank or pull cord. This PM standard applies to both steady-state and transient testing, as described in paragraphs (a) and (b) of this section. Engines certified under this paragraph (c) may not be used to generate PM or NOX+NMHC emission credits under the provisions of subpart H of this part. These engines may use PM or NOX+NMHC emission credits, subject to the FEL caps in paragraph (d)(1) of this section.

(d) Averaging, banking, and trading. You may generate or use emission credits under the averaging, banking, and trading (ABT) program, as described in subpart H of this part. This requires that you specify a family emission limit (FEL) for each pollutant you include in the ABT program for each engine family. These FELs serve as the emission standards for the engine family with respect to all required testing instead of the standards specified in paragraphs (a) and (b) of this section. The FELs determine the not-to-exceed standards for your engine family, as specified in paragraph (e) of this section.

(1) Primary FEL caps. The FEL may not be higher than the limits in Table 2 of this section, except as allowed by paragraph (d)(2) of this section or by § 1039.102:

(2) Alternate FEL caps. For a given power category, you may use the alternate FEL caps shown in Table 3 of this section instead of the FEL caps identified in paragraph (d)(1) of this section for up to 5 percent of your U.S.-directed production volume in a given model year.

(e) Not-to-exceed standards. Exhaust emissions from your engines may not exceed the applicable not-to-exceed (NTE) standards in this paragraph (e).

(1) Measure emissions using the procedures described in subpart F of this part.

(2) Except as noted in paragraph (e)(7) of this section, the NTE standard, rounded to the same number of decimal places as the applicable standard in Table 1 of this section, is determined from the following equation:

NTE standard for each pollutant = (STD) × (M)Where:STD = The standard specified for that pollutant in Table 1 of this section (or paragraph (c) of this section) if you certify without using ABT for that pollutant; or the FEL for that pollutant if you certify using ABT.M = The NTE multiplier for that pollutant, as defined in paragraph (e)(3) of this section.

(3) The NTE multiplier for each pollutant is 1.25, except in the following cases:

If . . .Or . . .Then . . .(i) The engine family is certified to a NOX standard less than 2.50 g/kW-hr without using ABTThe engine family is certified to a NOX FEL less than 2.50 g/kW-hr or a NOX+NMHC FEL less than 2.70 g/kW-hrThe multiplier for NOX, NMHC, and NOX+NMHC is 1.50.(ii) The engine family is certified to a PM standard less than 0.07 g/kW-hr without using ABTThe engine family is certified to a PM FEL less than 0.07 g/kW-hrThe multiplier for PM is 1.50.

(4) There are two sets of specifications of ambient operating regions that will apply for all NTE testing of engines in an engine family. You must choose one set for each engine family and must identify your choice of ambient operating regions in each application for certification for an engine family. You may choose separately for each engine family. Choose one of the following ambient operating regions:

(i) All altitudes less than or equal to 5,500 feet above sea level during all ambient temperature and humidity conditions.

(ii) All altitudes less than or equal to 5,500 feet above sea level, for temperatures less than or equal to the temperature determined by the following equation at the specified altitude:

(5) Temperature and humidity ranges for which correction factors are allowed are specified in 40 CFR 86.1370-2007(e).

(i) If you choose the ambient operating region specified in paragraph (e)(4)(i) of this section, the temperature and humidity ranges for which correction factors are allowed are defined in 40 CFR 86.1370-2007(e)(1).

(ii) If you choose the ambient operating region specified in paragraph (e)(4)(ii) of this section, the temperature and humidity ranges for which correction factors are allowed are defined in 40 CFR 86.1370-2007(e)(2).

(6) For engines equipped with exhaust-gas recirculation, the NTE standards of this section do not apply during the cold operating conditions specified in 40 CFR 86.1370-2007(f).

(7) For engines certified to a PM FEL less than or equal to 0.01 g/kW-hr, the PM NTE standard is 0.02 g/kW-hr.

(f) Fuel types. The exhaust emission standards in this section apply for engines using the fuel type on which the engines in the engine family are designed to operate, except for engines certified under § 1039.615. For engines certified under § 1039.615, the standards of this section apply to emissions measured using the specified test fuel. You must meet the numerical emission standards for NMHC in this section based on the following types of hydrocarbon emissions for engines powered by the following fuels:

(1) Alcohol-fueled engines: THCE emissions.

(2) Other engines: NMHC emissions.

(g) Useful life. Your engines must meet the exhaust emission standards in paragraphs (a) through (e) of this section over their full useful life.

(1) The useful life values are shown in the following table, except as allowed by paragraph (g)(2) of this section:

(2) You may request in your application for certification that we approve a shorter useful life for an engine family. We may approve a shorter useful life, in hours of engine operation but not in years, if we determine that these engines will rarely operate longer than the shorter useful life. If engines identical to those in the engine family have already been produced and are in use, your demonstration must include documentation from such in-use engines. In other cases, your demonstration must include an engineering analysis of information equivalent to such in-use data, such as data from research engines or similar engine models that are already in production. Your demonstration must also include any overhaul interval that you recommend, any mechanical warranty that you offer for the engine or its components, and any relevant customer design specifications. Your demonstration may include any other relevant information. The useful life value may not be shorter than any of the following:

(i) 1,000 hours of operation.

(ii) Your recommended overhaul interval.

(iii) Your mechanical warranty for the engine.

(h) Applicability for testing. The emission standards in this subpart apply to all testing, including certification, selective enforcement audits, and in-use testing. For selective enforcement audits, we will require you to perform duty-cycle testing as specified in §§ 1039.505 and 1039.510. The NTE standards of this section apply for those tests. We will not direct you to do additional testing under a selective enforcement audit to show that your engines meet the NTE standards.

The exhaust emission standards of this section apply for 2014 and earlier model years. See § 1039.101 for exhaust emission standards that apply to later model years. See 40 CFR 89.112 for exhaust emission standards that apply to model years before the standards of this part 1039 take effect.

(a) Emission standards for transient testing. Transient exhaust emissions from your engines may not exceed the applicable emission standards in Tables 1 through 6 of this section. Measure emissions using the applicable transient test procedures described in subpart F of this part. See paragraph (c) of this section for a description of provisions related to the phase-in and phase-out standards shown in Tables 4 through 6 of this section. The emission standards for transient testing are limited for certain engines, as follows:

(1) The transient standards in this section do not apply for the following engines:

(i) Engines below 37 kW for model years before 2013.

(ii) Engines certified under Option #1 of Table 3 of this section. These are the small-volume manufacturer engines certified to the Option #1 standards for model years 2008 through 2015 under § 1039.104(c), and other engines certified to the Option #1 standards for model years 2008 through 2012.

(iii) Engines certified to an alternate FEL during the first four years of the Tier 4 standards for the applicable power category, as allowed in § 1039.104(g). However, you may certify these engines to the transient standards in this section to avoid using temporary compliance adjustment factors, as described in § 1039.104(g)(2). Note that in some cases this four-year period extends into the time covered by the standards in § 1039.101.

(iv) Constant-speed engines.

(v) Engines above 560 kW.

(2) The transient standards in this section for gaseous pollutants do not apply to phase-out engines that you certify to the same numerical standards (and FELs if the engines are certified using ABT) for gaseous pollutants as you certified under the Tier 3 requirements of 40 CFR part 89. However, except as specified by paragraph (a)(1) of this section, the transient PM emission standards apply to these engines.

(b) Emission standards for steady-state testing. Steady-state exhaust emissions from your engines may not exceed the applicable emission standards in Tables 1 through 7 of this section. Measure emissions using the applicable steady-state test procedures described in subpart F of this part. See paragraph (c) of this section for a description of provisions related to the phase-in and phase-out standards shown in Tables 4 through 6 of this section.

Table 1 of § 1039.102—Tier 4 Exhaust Emission Standards (g/kW-hr): kW < 19Maximum engine powerModel yearsPMNOX + NMHCCOkW < 82008-20141 0.407.58.08 ≤ kW < 192008-20140.407.56.61 For engines that qualify for the special provisions in § 1039.101(c), you may delay certifying to the standards in this part 1039 until 2010. In 2009 and earlier model years, these engines must instead meet the applicable Tier 2 standards and other requirements from 40 CFR part 89. Starting in 2010, these engines must meet a PM standard of 0.60 g/kW-hr, as described in § 1039.101(c). Engines certified to the 0.60 g/kWhr PM standard may not generate ABT credits.Table 2 of § 1039.102—Interim Tier 4 Exhaust Emission Standards (g/kW-hr): 19 ≤ kW < 37Model yearsPMNOX + NMHCCO2008-20120.307.55.52013-20140.034.75.5Table 3 of § 1039.102—Interim Tier 4 Exhaust Emission Standards (g/kW-hr): 37 ≤ kW < 56 Option 1Model yearsPMNOX + NMHCCO#12008-20120.304.75.0#220120.034.75.0All2013-20140.034.75.01You may certify engines to the Option #1 or Option #2 standards starting in the listed model year. Under Option #1, all engines at or above 37 kW and below 56 kW produced before the 2013 model year must meet the applicable Option #1 standards in this table. These engines are considered to be “Option #1 engines.” Under Option #2, all these engines produced before the 2012 model year must meet the applicable standards under 40 CFR part 89. Engines certified to the Option #2 standards in model year 2012 are considered to be “Option #2 engines.”Table 4 of § 1039.102—Interim Tier 4 Exhaust Emission Standards (g/kW-hr): 56 ≤ kW < 75Model years 1Phase-in optionPMNOXNMHCNOX + NMHCCOPhase-in0.020.400.195.02012-2013Phase-out0.024.75.02014All engines0.020.400.195.01 See paragraph (d)(2) of this section for provisions that allow for a different phase-in schedule than that specified in paragraph (c)(1) of this section.Table 5 of § 1039.102—Interim Tier 4 Exhaust Emission Standards (g/kW-hr): 75 ≤ kW < 130Model years 1Phase-in optionPMNOXNMHCNOX + NMHCCOPhase-in0.020.400.195.02012-2013Phase-out0.024.05.02014All engines0.020.400.195.01 See paragraph (d)(2) of this section for provisions that allow for a different phase-in schedule than that specified in paragraph (c)(1) of this section.Table 6 of § 1039.102—Interim Tier 4 Exhaust Emission Standards (g/kW-hr): 130 ≤ kW < 560Model years 1Phase-in optionPMNOXNMHCNOX + NMHCCOPhase-in0.020.400.193.52011-2013Phase-out0.024.03.52014All engines0.020.400.193.5Table 7 of § 1039.102—Interim Tier 4 Exhaust Emission Standards (g/kW-hr): kW > 560Model yearsMaximum engine powerApplicationPMNOXNMHCCO560 < kW ≤ 900All0.103.50.403.5Generator sets0.100.670.403.52011-2014kW > 900All except generator sets0.103.50.403.5

(c) Phase-in requirements. The following phase-in provisions apply for engines in 56-560 kW power categories meeting the interim Tier 4 standards in paragraphs (a) and (b) of this section:

(1) For each model year before 2014 noted in Tables 4 through 6 of this section, you must certify engine families representing at least 50 percent of your U.S.-directed production volume for each power category to the applicable phase-in standards, except as allowed by paragraph (c)(3), (d)(2), or (e) of this section. Any engines not certified to the phase-in standards must be certified to the corresponding phase-out standards.

(2) Engines certified to the phase-out standards in Tables 4 through 6 of this section must comply with all other requirements that apply to Tier 4 engines, except as otherwise specified in this section.

(3) At the time of certification, show how you intend to meet the phase-in requirements of this paragraph (c) based on projected U.S.-directed production volumes. If your actual U.S.-directed production volume fails to meet the phase-in requirements for a given model year, you must make up the shortfall (in terms of number of engines) by the end of the model year representing the final year of the phase-in period. For example, if you plan in good faith to produce 50 percent of a projected 10,000 engines in the 56-130 kW power category (i.e., 5,000 engines) in 2012 in compliance with the Tier 4 phase-in standards for NOX and NMHC in Table 4 of this section, but produce 4,500 such engines of an actual 10,000 engines, you must produce 500 engines in model year 2013 (i.e., the final year of the phase-in for this power category) that meet the Tier 4 phase-in standards above and beyond the production otherwise needed to meet the 50-percent phase-in requirement for model year 2013. If any shortfall exceeds the applicable limit of paragraph (c)(3)(i) or (ii) of this section, that number of phase-out engines will be considered not covered by a certificate of conformity and in violation of § 1068.101(a)(1). The shortfall allowed by this paragraph (c)(3) may not exceed a certain number of engines, as follows:

(i) For engine families certified according to the alternate phase-in schedule described in paragraph (d)(2) of this section, for model years prior to the final year of the phase-in, 5 percent of your actual U.S.-directed production volume for that power category in that model year.

(ii) For all other engine families, for model years prior to the final year of the phase-in, 25 percent of your actual U.S.-directed production volume for that power category in that model year.

(iii) No shortfall is allowed in the final year of the phase-in.

(4) Engines you introduce into commerce beyond the limits described in paragraphs (c)(3) of this section will be considered not covered by a certificate of conformity and in violation of § 1068.101(a)(1).

(5) For the purposes of this part, the term “phase-in” means relating to a standard that is identified in this section as a phase-in standard and the term “phase-out” means relating to a standard that is identified in this section as a phase-out standard. For example, a 200-kW engine from the 2012 model year that is certified to the 4.0 g/kW-hr NOX+NMHC standard in Table 6 of § 1039.102 is a phase-out engine.

(d) Banked credits and alternate phase-in for 56-130 kW engines. For engines in the 56-130 kW power category, you may use only one of the following additional provisions:

(1) For model years 2012 through 2014, you may use banked NOX+NMHC credits from any Tier 2 engine at or above 37 kW certified under 40 CFR part 89 to meet the NOX phase-in standards or the NOX+NMHC phase-out standards under paragraphs (b) and (c) of this section, subject to the additional ABT provisions in § 1039.740.

(2) Instead of meeting the phase-in requirements of paragraph (c)(1) of this section, you may certify engine families representing at least 25 percent of your U.S.-directed production volume for each model year from 2012 through 2014 to the applicable phase-in standards in Tables 4 and 5 of this section, except as allowed by paragraph (c)(3) or (e) of this section. Any engines not certified to the phase-in standards must be certified to the corresponding phase-out standards. Engines certified under this paragraph (d)(2) may generate NOX emission credits only for averaging within the same power category during the same model year. For engines certified under this paragraph (d)(2), the 2014 model year may not extend beyond December 30, 2014.

(e) Alternate NOX standards. For engines in 56-560 kW power categories during the phase-in of Tier 4 standards, you may certify engine families to the alternate NOX standards in this paragraph (e) instead of the phase-in and phase-out NOX and NOX+NMHC standards described in Tables 4 through 6 of this section. Engines certified under this section must be certified to an NMHC standard of 0.19 g/kW-hr. Do not include engine families certified under this paragraph (e) in determining whether you comply with the percentage phase-in requirements of paragraphs (c) and (d)(2) of this section. Except for the provisions for alternate FEL caps in § 1039.104(g), the NOX standards and FEL caps under this paragraph (e) are as follows:

(1) For engines in the 56-130 kW power category, apply the following alternate NOX standards and FEL caps:

(i) If you use the provisions of paragraph (d)(1) of this section, your alternate NOX standard for any engine family in the 56-130 kW power category is 2.3 g/kW-hr for model years 2012 and 2013. Engines certified to this standard may not exceed a NOX FEL cap of 3.0 g/kW-hr.

(ii) If you use the provisions of paragraph (d)(2) of this section, your alternate NOX standard for any engine family in the 56-130 kW power category is 3.4 g/kW-hr for model years 2012 through 2014. Engines below 75 kW certified to this standard may not exceed a NOX FEL cap of 4.4 g/kW-hr; engines at or above 75 kW certified to this standard may not exceed a NOX FEL cap of 3.8 g/kW-hr.

(iii) If you do not use the provisions of paragraph (d) of this section, you may apply the alternate NOX standard and the appropriate FEL cap from either paragraph (e)(1)(i) or (ii) of this section.

(2) For engines in the 130-560 kW power category, the alternate NOX standard is 2.0 g/kW-hr for model years 2011 through 2013. Engines certified to this standard may not exceed a NOX FEL cap of 2.7 g/kW-hr.

(f) Split families. For generating or using credits for engines in 56-560 kW power categories during the phase-in of Tier 4 standards, you may split an engine family into two subfamilies (for example, one that uses credits and one that generates credits for the same pollutant).

(1) Identify any split engine families in your application for certification. Your engines must comply with all the standards and requirements applicable to Tier 4 engines, except as noted in this paragraph (f). You may calculate emission credits relative to different emission standards (i.e., phase-in and phase-out standards) for different sets of engines within the engine family, but the engine family must be certified to a single set of standards and FELs. To calculate NOX+NMHC emission credits, add the NOX FEL to the NMHC phase-in standard for comparison with the applicable NOX+NMHC phase-out standard. Any engine family certified under this paragraph (f) must meet the applicable phase-in standard for NMHC. You may assign the number and configurations of engines within the respective subfamilies any time before the due date for the final report required in § 1039.730. Apply the same label to each engine in the family, including the NOX FEL to which it is certified.

(2) For example, a 10,000-unit engine family in the 75-130 kW power category may be certified to meet the standards for PM, NMHC, and CO that apply to phase-in engines, with a 0.8 g/kW-hr FEL for NOX. When compared to the phase-out NOX+NMHC standard, this engine family would generate positive NOX+NMHC emission credits. When compared to the phase-in NOX standard, this engine family would generate negative NOX emission credits. You could create a subfamily with 2,500 engines (one-quarter of the 10,000 engines) and identify them as phase-in engines. You would count these 2,500, with their negative NOX credits, in determining compliance with the 50-percent phase-in requirement in paragraph (c)(1) of this section. You would calculate negative credits relative to the 0.40 g/kW-hr NOX standard for these 2,500 engines. You would identify the other 7,500 engines in the family as phase-out engines and calculate positive credits relative to the 4.0 g/kW-hr NOX+NMHC standard.

(g) Other provisions. The provisions of § 1039.101(d) through (h) apply with respect to the standards of this section, with the following exceptions and special provisions:

(1) NTE standards. Use the provisions of § 1039.101(e)(3) to calculate and apply the NTE standards, but base these calculated values on the applicable standards in this section or the applicable FEL, instead of the standards in Table 1 of § 1039.101. All other provisions of § 1039.101(e) apply under this paragraph (g)(1). The NTE standards do not apply for certain engines and certain pollutants, as follows:

(i) All engines below 37 kW for model years before 2013.

(ii) All engines certified under Option #1 of Table 3 of this section. These are small-volume manufacturer engines certified to the Option #1 standards for model years 2008 through 2015 under § 1039.104(c), and other engines certified to the Option #1 standards for model years 2008 through 2012.

(iii) All engines less than or equal to 560 kW that are certified to an FEL under the alternate FEL program during the first four years of the Tier 4 standards for the applicable power category, as described in § 1039.104(g). However, if you apply to meet transient emission standards for these engines under § 1039.102(a)(1)(iii), you must also meet the NTE standards in this paragraph (g)(1).

(iv) Gaseous pollutants for phase-out engines that you certify to the same numerical standards and FELs for gaseous pollutants to which you certified under the Tier 3 requirements of 40 CFR part 89. However, the NTE standards for PM apply to these engines.

(2) Interim FEL caps. As described in § 1039.101(d), you may participate in the ABT program in subpart H of this part by certifying engines to FELs for PM, NOX, or NOX+NMHC instead of the standards in Tables 1 through 7 of this section for the model years shown. The FEL caps listed in the following table apply instead of the FEL caps in § 1039.101(d)(1), except as allowed by § 1039.104(g):

(3) Crankcase emissions. The crankcase emission requirements of § 1039.115(a) do not apply to engines using charge-air compression that are certified to an FEL under the alternate FEL program in § 1039.104(g) during the first four years of the Tier 4 standards for the applicable power category.

(4) Special provisions for 37-56 kW engines. For engines at or above 37 kW and below 56 kW from model years 2008 through 2012, you must add information to the emission-related installation instructions to clarify the equipment manufacturer's obligations under § 1039.104(f).

The provisions in this section apply instead of other provisions in this part. This section describes when these interim provisions apply.

(a) Incentives for early introduction. This paragraph (a) allows you to reduce the number of engines subject to the applicable standards in § 1039.101 or § 1039.102, when some of your engines are certified to the specified levels earlier than otherwise required. The engines that are certified early are considered offset-generating engines. The provisions of this paragraph (a), which describe the requirements applicable to offset-generating engines, apply beginning in model year 2007. These offset generating engines may generate additional allowances for equipment manufacturers under the incentive program described in § 1039.627; you may instead use these offsets under paragraph (a)(2) of this section in some cases.

(1) For early-compliant engines to generate offsets for use either under this paragraph (a) or under § 1039.627, you must meet the following general provisions:

(i) You may not generate offsets from engines below 19 kW.

(ii) You must begin actual production of engines covered by the corresponding certificate by the following dates:

(A) For engines at or above 19 kW and below 37 kW: September 1, 2012.

(B) For engines at or above 37 kW and below 56 kW: September 1, 2012 if you choose Option #1 in Table 3 of § 1039.102, or September 1, 2011 if you do not choose Option #1 in Table 3 of § 1039.102.

(C) For engines in the 56-130 kW power category: September 1, 2011.

(D) For engines in the 130-560 kW power category: September 1, 2010.

(E) For engines above 560 kW: September 1, 2014.

(iii) Engines you produce after December 31 of the year shown in paragraph (a)(1)(ii) of this section may not generate offsets.

(iv) You may not use ABT credits to certify offset-generating engines.

(v) Offset-generating engines must be certified to the Tier 4 standards and requirements under this part 1039.

(2) If equipment manufacturers decline offsets for your offset-generating engines under § 1039.627, you may not generate ABT credits with these engines, but you may reduce the number of engines that are required to meet the standards in § 1039.101 or 1039.102 as follows:

For every . . .With maximum engine power . . .That are certified to the applicable standards in . . .You may reduce the number of engines in the same power category that are required to meet the . . .In later model years by . . .(i) 2 engines19 ≤ kW < 37Table 2 of § 1039.102 1PM standard in Table 2 of § 1039.102 applicable to model year 2013 or 2014 engines or the PM standard in Table 1 of § 1039.1013 engines.(ii) 2 engines56 ≤ kW ≤ 560Table 4, 5, or 6 of § 1039.102 for Phase-out enginesPhase-out standards in Tables 4 through 6 of § 1039.1023 engines.(iii) 2 engineskW ≥ 19Table 1 of § 1039.101Standards in Tables 2 through 7 of § 1039.102 or standards in Table 1 of § 1039.1013 engines. 2(iv) 1 enginekW ≥ 19Table 1 of § 1039.101 + 0.20 g/kW-hr NOX standardStandards in Tables 2 through 7 of § 1039.102 or standards in Table 1 of § 1039.1012 engines. 21 The engine must be certified to the PM standard applicable to model year 2013 engines, and to the NOX+NMHC and CO standards applicable to model year 2012 engines.2 For engines above 560 kW, offsets from generator-set engines may be used only for generator-set engines. Offsets from engines for other applications may be used only for other applications besides generator sets.

(3) Example: If you produce 100 engines in the 56-130 kW power category in model year 2008 that are certified to the 56-130 kW standards listed in § 1039.101, and you produced 10,000 engines in this power category in model year 2015, then only 9,850 of these model year 2015 engines would need to comply with the standards listed in § 1039.101. The 100 offset-generating engines in model year 2008 could not use or generate ABT credits.

(4) Offset-using engines (that is, those not required to certify to the standards of § 1039.101 or § 1039.102 under paragraph (a)(2) of this section) are subject to the following provisions:

(i) If the offset is being used under paragraph (a)(2)(i) of this section for an engine that would otherwise be certified to the model year 2013 or 2014 standards in Table 2 of § 1039.102 or the standards in Table 1 of § 1039.101, this engine must be certified to the standards and requirements of this part 1039, except that the only PM standard that applies is the steady-state PM standard that applies for model year 2012. Such an engine may not generate ABT credits.

(ii) If the offset is being used under paragraph (a)(2)(ii) of this section for an engine that would otherwise be certified to the phase-out standards in Tables 4 through 6 of § 1039.102, this engine must be certified to the standards and requirements of this part 1039, except that the PM standard is the Tier 3 PM standard that applies for this engine's maximum power. Such an engine will be treated as a phase-out engine for purposes of determining compliance with percentage phase-in requirements. Such an engine may not generate ABT credits.

(iii) All other offset-using engines must meet the standards and other provisions that apply in model year 2011 for engines in the 19-130 kW power categories, in model year 2010 for engines in the 130-560 kW power category, or in model year 2014 for engines above 560 kW. Show that engines meet these emission standards by meeting all the requirements of § 1068.265. You must meet the labeling requirements in § 1039.135, but add the following statement instead of the compliance statement in § 1039.135(c)(12): “THIS ENGINE MEETS U.S. EPA EMISSION STANDARDS UNDER 40 CFR 1039.104(a).” For power categories with a percentage phase-in, these engines should be treated as phase-in engines for purposes of determining compliance with phase-in requirements.

(5) If an equipment manufacturer claims offsets from your engine for use under § 1039.627, the engine generating the offset must comply with the requirements of paragraph (a)(1) of this section. You may not generate offsets for use under paragraphs (a)(2) and (5) of this section for these engines. You may generate ABT credits from these engines as follows:

(i) To generate emission credits for NOX, NOX+NMHC, and PM, the engine must be certified to FELs at or below the standards in paragraph (a)(2) of this section.

(ii) Calculate credits according to § 1039.705 but use as the applicable standard the numerical value of the standard to which the engine would have otherwise been subject if it had not been certified under this paragraph (a).

(iii) For the production volume, use the number of engines certified under this paragraph (a) for which you do not claim offsets under paragraph (a)(2) of this section.

(6) You may include engines used to generate offsets under this paragraph (a) and engines used to generate offsets under § 1039.627 in the same engine family, subject to the provisions of § 1039.230. The engine must be certified to FELs, as specified in paragraph (a)(5)(i) of this section. The FELs must be below the standard levels specified in paragraph (a)(2) of this section and those specified in § 1039.627. In the reports required in § 1039.730, include the following information for each model year:

(i) The total number of engines that generate offsets under this paragraph (a).

(ii) The number of engines used to generate offsets under paragraph (a)(2) of this section.

(iii) The names of equipment manufacturers that intend to use your offsets under § 1039.627 and the number of offsets involved for each equipment manufacturer.

(b) In-use compliance limits. For purposes of determining compliance after title or custody has transferred to the ultimate purchaser, calculate the applicable in-use compliance limits by adjusting the applicable standards or FELs. This applies only for engines at or above 19 kW. The NOX adjustment applies only for engines with a NOX FEL no higher than 2.1 g/kW-hr The PM adjustment applies only for engines with a PM FEL no higher than the PM standard in § 1039.101 for the appropriate power category. Add the following adjustments to the otherwise applicable standards or FELs (steady-state, transient, and NTE) for NOX and PM:

(c) Provisions for small-volume manufacturers. Special provisions apply if you are a small-volume engine manufacturer subject to the requirements of this part. You must notify us in writing before January 1, 2008 if you intend to use these provisions.

(1) You may delay complying with certain otherwise applicable Tier 4 emission standards and requirements as described in the following table:

If your engine's maximum power is . . .You may delay meeting . . .Until model year . . .Before that model year the engine must comply with . . .kW < 19The standards and requirements of this part2011The standards and requirements in 40 CFR part 89.19 ≤ kW < 37The Tier 4 standards and requirements of this part that would otherwise be applicable in model year 20132016The Tier 4 standards and requirements that apply for model year 2008.37 ≤ kW < 56 See paragraph (c)(2) of this section for special provisions that apply for engines in this power category.56 ≤ kW < 130The standards and requirements of this part2015The standards and requirements in 40 CFR part 89.

(2) To use the provisions of this paragraph (c) for engines at or above 37 kW and below 56 kW, choose one of the following:

(i) If you comply with the 0.30 g/kW-hr PM standard in § 1039.102 in all model years from 2008 through 2012 without using PM credits, you may continue meeting that standard through 2015.

(ii) If you do not choose to comply with paragraph (c)(2)(i) of this section, you may continue to comply with the standards and requirements in 40 CFR part 89 for model years through 2012, but you must begin complying in 2013 with Tier 4 standards and requirements specified in Table 3 of § 1039.102 for model years 2013 and later.

(3) After the delays indicated in paragraph (c)(1) and (2) of this section, you must comply with the same Tier 4 standards and requirements as all other manufacturers.

(4) For engines not in the 19-56 kW power category, if you delay compliance with any standards under this paragraph (c), you must do all the following things for the model years when you are delaying compliance with the otherwise applicable standards:

(i) Produce engines that meet all the emission standards and other requirements under 40 CFR part 89 applicable for that model year, except as noted in this paragraph (c).

(ii) Meet the labeling requirements in 40 CFR 89.110, but use the following compliance statement instead of the compliance statement in 40 CFR 89.110(b)(10): “THIS ENGINE COMPLIES WITH U.S. EPA REGULATIONS FOR [CURRENT MODEL YEAR] NONROAD COMPRESSION-IGNITION ENGINES UNDER 40 CFR 1039.104(c).”.

(iii) Notify the equipment manufacturer that the engines you produce under this section are excluded from the production volumes associated with the equipment-manufacturer allowance program in § 1039.625.

(5) For engines in the 19-56 kW power category, if you delay compliance with any standards under this paragraph (c), you must do all the following things for the model years when you are delaying compliance with the otherwise applicable standards:

(i) Produce engines in those model years that meet all the emission standards and other requirements that applied for your model year 2008 engines in the same power category.

(ii) Meet the labeling requirements in § 1039.135, but use the following compliance statement instead of the compliance statement in § 1039.135: “THIS ENGINE COMPLIES WITH U.S. EPA REGULATIONS FOR [CURRENT MODEL YEAR] NONROAD COMPRESSION-IGNITION ENGINES UNDER 40 CFR 1039.104(c).”.

(iii) Notify the equipment manufacturer that the engines you produce under this section are excluded from the production volumes associated with the equipment-manufacturer allowance program in § 1039.625.

(6) The provisions of this paragraph (c) may not be used to circumvent the requirements of this part.

(d) Deficiencies for NTE standards. You may ask us to accept as compliant an engine that does not fully meet specific requirements under the applicable NTE standards. Such deficiencies are intended to allow for minor deviations from the NTE standards under limited conditions. We expect your engines to have functioning emission-control hardware that allows you to comply with the NTE standards.

(1) Request our approval for specific deficiencies in your application for certification, or before you submit your application. We will not approve deficiencies retroactively to cover engines already certified. In your request, identify the scope of each deficiency and describe any auxiliary emission-control devices you will use to control emissions to the lowest practical level, considering the deficiency you are requesting.

(2) We will approve a deficiency only if compliance would be infeasible or unreasonable considering such factors as the technical feasibility of the given hardware and the applicable lead time and production cycles—including schedules related to phase-in or phase-out of engines. We may consider other relevant factors.

(3) Our approval applies only for a single model year and may be limited to specific engine configurations. We may approve your request for the same deficiency in the following model year if correcting the deficiency would require unreasonable hardware or software modifications and we determine that you have demonstrated an acceptable level of effort toward complying.

(4) You may ask for any number of deficiencies in the first three model years during which NTE standards apply for your engines. For the next four model years, we may approve up to three deficiencies per engine family. Deficiencies of the same type that apply similarly to different power ratings within a family count as one deficiency per family. We may condition approval of any such additional deficiencies during these four years on any additional conditions we determine to be appropriate. We will not approve deficiencies after the seven-year period specified in this paragraph (d)(4).

(e) Diesel test fuels and corresponding labeling requirements. For diesel-fueled engines in 2011 and later model years, the diesel test fuel is ultra low-sulfur diesel fuel specified in 40 CFR part 1065. For diesel-fueled engines in 2010 and earlier model years, use test fuels and meet labeling requirements as follows:

(ii) In model years 2007 through 2010, you may use ultra low-sulfur diesel fuel as the test fuel for any engine family that employs sulfur-sensitive technology if you can demonstrate that in-use engines in the family will use diesel fuel with a sulfur concentration no greater than 15 ppm.

(iii) You may use ultra low-sulfur diesel fuel as the test fuel for engine families in any power category below 56 kW, as long as none of the engines in your engine family employ sulfur-sensitive technologies, you ensure that ultimate purchasers of equipment using these engines are informed that ultra low-sulfur diesel fuel is recommended, and you recommend to equipment manufacturers that a label be applied at the fuel inlet recommending 15 ppm fuel.

(iv) For the engines described in § 1039.101(c) that are certified to the 0.60 g/kW-hr PM standard in Table 1 of § 1039.102 in the 2010 model year, you may test with the ultra low-sulfur fuel specified in 40 CFR part 1065.

(2) Meet the labeling requirements of this paragraph (e)(2) (or other labeling requirements we approve) to identify the applicable test fuels specified in paragraph (e)(1) of this section. Provide instructions to equipment manufacturers to ensure that they are aware of these labeling requirements.

(i) For engines certified under the provisions of paragraph (e)(1)(i) of this section, include the following statement on the emission control information label and the fuel-inlet label specified in § 1039.135: “LOW SULFUR FUEL OR ULTRA LOW SULFUR FUEL ONLY”.

(ii) For engines certified under the provisions of paragraph (e)(1)(ii) of this section, include the following statement on the emission control information label and the fuel-inlet label specified in § 1039.135: “ULTRA LOW SULFUR FUEL ONLY”.

(iii) For engines certified under the provisions of paragraph (e)(1)(iii) of this section, include the following statement on the emission control information label specified in § 1039.135: “ULTRA LOW SULFUR FUEL RECOMMENDED”.

(3) For model years 2010 and earlier, we will use the test fuel that you use under paragraph (e)(1) of this section, subject to the conditions of paragraph (e)(1) of this section.

(f) Requirements for equipment manufacturers. If you produce equipment with engines certified to Tier 3 standards under Option #2 of Table 3 of § 1039.102 during model years from 2008 through 2011, then a minimum number of pieces of equipment you produce using 2012 model year engines must have engines certified to the Option #2 standards, as follows:

(1) For equipment you produce with 2012 model year engines at or above 37 kW and below 56 kW, determine the minimum number of these engines that must be certified to the Option #2 standards in Table 3 of § 1039.102 as follows:

(i) If all the equipment you produce using 2008 through 2011 model year engines use engines certified to Tier 3 standards under Option #2 of Table 3 of § 1039.102, then all the 2012 model year engines you install must be certified to the Option #2 standards of Table 3 of § 1039.102.

(ii) If you produce equipment using 2008 through 2011 model year engines with some engines certified to Option #1 standards of Table 3 of § 1039.102 and some engines certified to Tier 3 standards under Option #2 standards of Table 3 of § 1039.102, calculate the minimum number of 2012 model year engines you must install that are certified to the Option #2 standards of Table 3 of § 1039.102 from the following equation:

Minimum number = [(T-O1−F)/(T−F)−0.05] × PWhere:T = The total number of 2008-2010 model year engines at or above 37 kW and below 56 kW that you use in equipment you produce.O1 = The number of engines from the 2008-2010 model years certified under Option #1 of Table 3 of § 1039.102 that you use in equipment you produce.F = The number of 2008-2010 model year engines at or above 37 kW and below 56 kW that you use in equipment you produce under the flexibility provisions of § 1039.625.P = The total number of 2012 model year engines at or above 37 kW and below 56 kW that you use in equipment you produce.

(2) As needed for the calculation required by this paragraph (f), keep records of all equipment you produce using 2008-2012 model year engines at or above 37 kW and below 56 kW. If you fail to keep these records, you may not use any 2012 model year engines certified to Option #1 standards in your equipment.

(3) If you fail to comply with the provisions of this paragraph (f), then using 2012 model year engines certified under Option #1 of Table 3 of § 1039.102 (or certified to less stringent standards) in such equipment violates the prohibitions in § 1068.101(a)(1).

(g) Alternate FEL caps. You may certify a limited number of engines from your U.S.-directed production volume to the FEL caps in Table 1 of this section instead of the otherwise applicable FEL caps in § 1039.101(d)(1), § 1039.102(e), or § 1039.102(g)(2), subject to the following provisions:

(1) The provisions of this paragraph (g) apply during the model years shown in Table 1 of this section. During this period, the number of engines certified to the FEL caps in Table 1 of this section must not exceed 20 percent in any single model year in each power category. The sum of percentages over the four-year period must not exceed a total of 40 percent in each power category. If you certify an engine under an alternate FEL cap in this paragraph (g) for any pollutant, count it toward the allowed percentage of engines certified to the alternate FEL caps.

(2) If your engine is not certified to transient emission standards under the provisions of § 1039.102(a)(1)(iii), you must adjust your FEL upward by a temporary compliance adjustment factor (TCAF) before calculating your negative emission credits under § 1039.705, as follows:

(i) The temporary compliance adjustment factor for NOX is 1.1.

(ii) The temporary compliance adjustment factor for PM is 1.5.

(iii) The adjusted FEL (FELadj) for calculating emission credits is determined from the steady-state FEL (FELss) using the following equation:

FELadj = (FELss) × (TCAF)

(iv) The unadjusted FEL (FELss) applies for all purposes other than credit calculation.

(3) These alternate FEL caps may not be used for phase-in engines.

(4) Do not apply TCAFs to gaseous emissions for phase-out engines that you certify to the same numerical standards (and FELs if the engines are certified using ABT) for gaseous pollutants as you certified under the Tier 3 requirements of 40 CFR part 89.

NOX FEL cap, g/kW-hrModel years for the alternate NOX FEL cap19 ≤ kW < 560.301 2012-201556 ≤ kW < 130 20.302012-20153.83 2012-2015130 ≤ kW ≤ 5600.202011-20143.84 2011-2014kW > 560 50.102015-20183.52015-20181 For manufacturers certifying engines under Option #1 of Table 3 of § 1039.102, these alternate FEL caps apply to all 19-56 kW engines for model years from 2013 through 2016 instead of in the years indicated in this table. For manufacturers certifying engines under Option #2 of Table 3 of § 1039.102, these alternate FEL caps do not apply to 19-37 kW engines except in model years 2013 to 2015.2 For engines below 75 kW, the FEL caps are 0.40 g/kW-hr for PM emissions and 4.4 g/kW-hr for NOX emissions.3 For manufacturers certifying engines in this power category using a percentage phase-in/phase-out approach instead of the alternate NOX standards of § 1039.102(e)(1), the alternate NOX FEL cap in the table applies only in the 2014-2015 model years if certifying under § 1039.102(d)(1), and only in the 2015 model year if certifying under (1039.102(d)(2).4 For manufacturers certifying engines in this power category using the percentage phase-in/phase-out approach instead of the alternate NOX standard of § 1039.102(e)(2), the alternate NOX FEL cap in the table applies only for the 2014 model year.5 For engines above 560 kW, the provision for alternate NOX FEL caps is limited to generator-set engines. For example, if you produce 1,000 generator-set engines above 560 kW in 2015, up to 200 of them may be certified to the alternate NOX FEL caps.

(h) Delayed compliance with labeling requirements. Before the 2011 model year, you may omit the dates of manufacture from the emission control information label as specified in § 1039.135(c)(6) if you keep those records and provide them to us upon request.

(a) The smoke standards in this section apply to all engines subject to emission standards under this part, except for the following engines:

(1) Single-cylinder engines.

(2) Constant-speed engines.

(3) Engines certified to a PM emission standard or FEL of 0.07 g/kW-hr or lower.

(b) Measure smoke as specified in § 1039.501(c). Smoke from your engines may not exceed the following standards:

(1) 20 percent during the acceleration mode.

(2) 15 percent during the lugging mode.

(3) 50 percent during the peaks in either the acceleration or lugging modes.

§ 1039.107What evaporative emission standards and requirements apply?

There are no evaporative emission standards for diesel-fueled engines, or engines using other nonvolatile or nonliquid fuels (for example, natural gas). If your engine uses a volatile liquid fuel, such as methanol, you must meet the evaporative emission requirements of 40 CFR part 1048 that apply to spark-ignition engines, as follows:

(a) Follow the steps in 40 CFR 1048.245 to show that you meet the requirements of 40 CFR 1048.105.

(b) Do the following things in your application for certification:

(1) Describe how your engines control evaporative emissions.

(2) Present test data to show that equipment using your engines meets the evaporative emission standards we specify in this section if you do not use design-based certification under 40 CFR 1048.245. Show these figures before and after applying deterioration factors, where applicable.

§ 1039.110[Reserved]§ 1039.115What other requirements apply?

Engines that are required to meet the emission standards of this part must meet the following requirements, except as noted elsewhere in this part:

(a) Crankcase emissions. Crankcase emissions may not be discharged directly into the ambient atmosphere from any engine throughout its useful life, except as follows:

(1) Engines may discharge crankcase emissions to the ambient atmosphere if the emissions are added to the exhaust emissions (either physically or mathematically) during all emission testing.

(2) If you take advantage of this exception, you must do the following things:

(i) Manufacture the engines so that all crankcase emissions can be routed into the applicable sampling systems specified in 40 CFR part 1065.

(3) For purposes of this paragraph (a), crankcase emissions that are routed to the exhaust upstream of exhaust aftertreatment during all operation are not considered to be discharged directly into the ambient atmosphere.

(b)-(d) [Reserved]

(e) Adjustable parameters. Engines that have adjustable parameters must meet all the requirements of this part for any adjustment in the physically adjustable range. An operating parameter is not considered adjustable if you permanently seal it or if it is not normally accessible using ordinary tools. We may require that you set adjustable parameters to any specification within the adjustable range during any testing, including certification testing, selective enforcement auditing, or in-use testing.

(f) Prohibited controls. You may not design your engines with emission-control devices, systems, or elements of design that cause or contribute to an unreasonable risk to public health, welfare, or safety while operating. For example, this would apply if the engine emits a noxious or toxic substance it would otherwise not emit that contributes to such an unreasonable risk.

(g) Defeat devices. You may not equip your engines with a defeat device. A defeat device is an auxiliary emission-control device that reduces the effectiveness of emission controls under conditions that the engine may reasonably be expected to encounter during normal operation and use. This does not apply to auxiliary-emission control devices you identify in your certification application if any of the following is true:

(1) The conditions of concern were substantially included in the applicable test procedures described in subpart F of this part.

(2) You show your design is necessary to prevent engine (or equipment) damage or accidents.

(a) General requirements. You must warrant to the ultimate purchaser and each subsequent purchaser that the new nonroad engine, including all parts of its emission-control system, meets two conditions:

(1) It is designed, built, and equipped so it conforms at the time of sale to the ultimate purchaser with the requirements of this part.

(2) It is free from defects in materials and workmanship that may keep it from meeting these requirements.

(b) Warranty period. Your emission-related warranty must be valid for at least as long as the minimum warranty periods listed in this paragraph (b) in hours of operation and years, whichever comes first. You may offer an emission-related warranty more generous than we require. The emission-related warranty for the engine may not be shorter than any published warranty you offer without charge for the engine. Similarly, the emission-related warranty for any component may not be shorter than any published warranty you offer without charge for that component. If an engine has no hour meter, we base the warranty periods in this paragraph (b) only on the engine's age (in years). The warranty period begins when the engine is placed into service. The minimum warranty periods are shown in the following table:

(c) Components covered. The emission-related warranty covers all components whose failure would increase an engine's emissions of any regulated pollutant, including components listed in 40 CFR part 1068, Appendix I, and components from any other system you develop to control emissions. The emission-related warranty covers these components even if another company produces the component. Your emission-related warranty does not need to cover components whose failure would not increase an engine's emissions of any regulated pollutant.

(d) Limited applicability. You may deny warranty claims under this section if the operator caused the problem through improper maintenance or use, as described in 40 CFR 1068.115.

(e) Owners manual. Describe in the owners manual the emission-related warranty provisions from this section that apply to the engine.

Give the ultimate purchaser of each new nonroad engine written instructions for properly maintaining and using the engine, including the emission-control system. The maintenance instructions also apply to service accumulation on your emission-data engines, as described in § 1039.245 and in 40 CFR part 1065.

(a) Critical emission-related maintenance. Critical emission-related maintenance includes any adjustment, cleaning, repair, or replacement of critical emission-related components. This may also include additional emission-related maintenance that you determine is critical if we approve it in advance. You may schedule critical emission-related maintenance on these components if you meet the following conditions:

(1) You demonstrate that the maintenance is reasonably likely to be done at the recommended intervals on in-use engines. We will accept scheduled maintenance as reasonably likely to occur if you satisfy any of the following conditions:

(i) You present data showing that, if a lack of maintenance increases emissions, it also unacceptably degrades the engine's performance.

(ii) You present survey data showing that at least 80 percent of engines in the field get the maintenance you specify at the recommended intervals.

(iii) You provide the maintenance free of charge and clearly say so in your maintenance instructions.

(iv) You otherwise show us that the maintenance is reasonably likely to be done at the recommended intervals.

(2) For engines below 130 kW, you may not schedule critical emission-related maintenance more frequently than the following minimum intervals, except as specified in paragraphs (a)(4), (b), and (c) of this section:

(ii) For the following components, including associated sensors and actuators, the minimum interval is 3,000 hours: Fuel injectors, turbochargers, catalytic converters, electronic control units, EGR systems (including related components, but excluding filters and coolers), and other add-on components.

(3) For engines at or above 130 kW, you may not schedule critical emission-related maintenance more frequently than the following minimum intervals, except as specified in paragraphs (a)(4), (b), and (c) of this section:

(ii) For the following components, including associated sensors and actuators, the minimum interval is 4,500 hours: Fuel injectors, turbochargers, catalytic converters, electronic control units, EGR systems (including related components, but excluding filters and coolers), and other add-on components.

(4) For particulate traps, trap oxidizers, and components related to either of these, scheduled maintenance may include cleaning or repair at the intervals specified in paragraph (a)(2) or (3) of this section, as applicable. Scheduled maintenance may include a shorter interval for cleaning or repair and may also include adjustment or replacement, but only if we approve it. We will approve your request if you provide the maintenance free of charge and clearly state this in your maintenance instructions, and you provide us additional information as needed to convince us that the maintenance will occur.

(5) You may ask us to approve a maintenance interval shorter than that specified in paragraphs (a)(2) and (3) of this section under § 1039.210, including emission-related components that were not in widespread use with nonroad compression-ignition engines before 2011. In your request you must describe the proposed maintenance step, recommend the maximum feasible interval for this maintenance, include your rationale with supporting evidence to support the need for the maintenance at the recommended interval, and demonstrate that the maintenance will be done at the recommended interval on in-use engines. In considering your request, we will evaluate the information you provide and any other available information to establish alternate specifications for maintenance intervals, if appropriate. We will announce any decision we make under this paragraph (a)(5) in the Federal Register. Anyone may request a hearing regarding such a decision (see § 1039.820).

(6) If your engine family has an alternate useful life under § 1039.101(g) that is shorter than the period specified in paragraph (a)(2) or (a)(3) of this section, you may not schedule critical emission-related maintenance more frequently than the alternate useful life, except as specified in paragraph (c) of this section.

(b) Recommended additional maintenance. You may recommend any additional amount of maintenance on the components listed in paragraph (a) of this section, as long as you state clearly that these maintenance steps are not necessary to keep the emission-related warranty valid. If operators do the maintenance specified in paragraph (a) of this section, but not the recommended additional maintenance, this does not allow you to disqualify those engines from in-use testing or deny a warranty claim. Do not take these maintenance steps during service accumulation on your emission-data engines.

(c) Special maintenance. You may specify more frequent maintenance to address problems related to special situations, such as atypical engine operation. You must clearly state that this additional maintenance is associated with the special situation you are addressing. We may disapprove your maintenance instructions if we determine that you have specified special maintenance steps to address engine operation that is not atypical, or that the maintenance is unlikely to occur in use. If we determine that certain maintenance items do not qualify as special maintenance under this paragraph (c), you may identify this as recommended additional maintenance under paragraph (b) of this section.

(d) Noncritical emission-related maintenance. Subject to the provisions of this paragraph (d), you may schedule any amount of emission-related inspection or maintenance that is not covered by paragraph (a) of this section (that is, maintenance that is neither explicitly identified as critical emission-related maintenance, nor that we approve as critical emission-related maintenance). Noncritical emission-related maintenance generally includes maintenance on the components we specify in 40 CFR part 1068, Appendix I, that is not covered in paragraph (a) of this section. You must state in the owners manual that these steps are not necessary to keep the emission-related warranty valid. If operators fail to do this maintenance, this does not allow you to disqualify those engines from in-use testing or deny a warranty claim. Do not take these inspection or maintenance steps during service accumulation on your emission-data engines.

(e) Maintenance that is not emission-related. For maintenance unrelated to emission controls, you may schedule any amount of inspection or maintenance. You may also take these inspection or maintenance steps during service accumulation on your emission-data engines, as long as they are reasonable and technologically necessary. This might include adding engine oil, changing air, fuel, or oil filters, servicing engine-cooling systems, and adjusting idle speed, governor, engine bolt torque, valve lash, or injector lash. You may perform this nonemission-related maintenance on emission-data engines at the least frequent intervals that you recommend to the ultimate purchaser (but not the intervals recommended for severe service).

(f) Source of parts and repairs. State clearly on the first page of your written maintenance instructions that a repair shop or person of the owner's choosing may maintain, replace, or repair emission-control devices and systems. Your instructions may not require components or service identified by brand, trade, or corporate name. Also, do not directly or indirectly condition your warranty on a requirement that the engine be serviced by your franchised dealers or any other service establishments with which you have a commercial relationship. You may disregard the requirements in this paragraph (f) if you do one of two things:

(1) Provide a component or service without charge under the purchase agreement.

(2) Get us to waive this prohibition in the public's interest by convincing us the engine will work properly only with the identified component or service.

(g) Payment for scheduled maintenance. Owners are responsible for properly maintaining their engines. This generally includes paying for scheduled maintenance. However, manufacturers must pay for scheduled maintenance during the useful life if the regulations require it or if it meets all the following criteria:

(1) Each affected component was not in general use on similar engines before the applicable dates shown in paragraph (6) of the definition of new nonroad engine in § 1039.801.

(2) The primary function of each affected component is to reduce emissions.

(3) The cost of the scheduled maintenance is more than 2 percent of the price of the engine.

(4) Failure to perform the maintenance would not cause clear problems that would significantly degrade the engine's performance.

(a) If you sell an engine for someone else to install in a piece of nonroad equipment, give the engine installer instructions for installing it consistent with the requirements of this part. Include all information necessary to ensure that an engine will be installed in its certified configuration.

(2) State: “Failing to follow these instructions when installing a certified engine in a piece of nonroad equipment violates federal law (40 CFR 1068.105(b)), subject to fines or other penalties as described in the Clean Air Act.”.

(3) Describe the instructions needed to properly install the exhaust system and any other components. Include instructions consistent with the requirements of § 1039.205(u).

(4) [Reserved]

(5) Describe any limits on the range of applications needed to ensure that the engine operates consistently with your application for certification. For example, if your engines are certified only for constant-speed operation, tell equipment manufacturers not to install the engines in variable-speed applications.

(6) Describe any other instructions to make sure the installed engine will operate according to design specifications in your application for certification. This may include, for example, instructions for installing aftertreatment devices when installing the engines.

(7) State: “If you install the engine in a way that makes the engine's emission control information label hard to read during normal engine maintenance, you must place a duplicate label on the equipment, as described in 40 CFR 1068.105.”.

(8) Describe equipment-labeling requirements consistent with § 1039.135. State whether you are providing the label for the fuel inlet or the equipment manufacturer must provide the label.

(c) You do not need installation instructions for engines you install in your own equipment.

(d) Provide instructions in writing or in an equivalent format. For example, you may post instructions on a publicly available website for downloading or printing. If you do not provide the instructions in writing, explain in your application for certification how you will ensure that each installer is informed of the installation requirements.

[69 FR 39213, June 29, 2004, as amended at 70 FR 40463, July 13, 2005]§ 1039.135How must I label and identify the engines I produce?

(a) Assign each engine a unique identification number and permanently affix, engrave, or stamp it on the engine in a legible way.

(b) At the time of manufacture, affix a permanent and legible label identifying each engine. The label must be—

(1) Attached in one piece so it is not removable without being destroyed or defaced. However, you may use two-piece labels for engines below 19 kW if there is not enough space on the engine to apply a one-piece label.

(2) Secured to a part of the engine needed for normal operation and not normally requiring replacement.

(3) Durable and readable for the engine's entire life.

(4) Written in English.

(c) The label must—

(1) Include the heading “EMISSION CONTROL INFORMATION”.

(2) Include your full corporate name and trademark. You may identify another company and use its trademark instead of yours if you comply with the provisions of § 1039.640.

(3) Include EPA's standardized designation for the engine family (and subfamily, where applicable).

(4) State the power category or subcategory from § 1039.101 or § 1039.102 that determines the applicable emission standards for the engine family. For engines at or above 37 kW and below 56 kW from model years 2008 through 2012, and for engines less than 8 kW utilizing the provision at § 1039.101(c), you must state the applicable PM standard for the engine family.

(5) State the engine's displacement (in liters); however, you may omit this from the label if all the engines in the engine family have the same per-cylinder displacement and total displacement.

(6) State the date of manufacture [DAY (optional), MONTH, and YEAR]; however, you may omit this from the label if you stamp, engrave, or otherwise permanently identify it elsewhere on the engine, in which case you must also describe in your application for certification where you will identify the date on the engine.

(7) State the FELs to which the engines are certified if certification depends on the ABT provisions of subpart H of this part.

(8) Identify the emission-control system. Use terms and abbreviations as described in 40 CFR 1068.45. You may omit this information from the label if there is not enough room for it and you put it in the owners manual instead.

(10) Identify any additional requirements for fuel and lubricants that do not involve fuel-sulfur levels. You may omit this information from the label if there is not enough room for it and you put it in the owners manual instead.

(11) State the useful life for your engine family if we approve a shortened useful life under § 1039.101(g)(2).

(i) For engines certified to the emission standards for generator-set engines, add the phrase “FOR GENERATOR SETS AND OTHER APPLICATIONS”.

(ii) For all other engines, add the phrase “NOT FOR USE IN A GENERATOR SET”.

(14) If your engines are certified only for constant-speed operation, state “USE IN CONSTANT-SPEED APPLICATIONS ONLY”.

(d) You may add information to the emission control information label to identify other emission standards that the engine meets or does not meet (such as European standards). You may also add other information to ensure that the engine will be properly maintained and used.

(e) Except as specified in § 1039.104(e)(2), create a separate label with the statement: “ULTRA LOW SULFUR FUEL ONLY”. Permanently attach this label to the equipment near the fuel inlet or, if you do not manufacture the equipment, take one of the following steps to ensure that the equipment will be properly labeled:

(1) Provide the label to the equipment manufacturer and include the appropriate information in the emission-related installation instructions.

(2) Confirm that the equipment manufacturers install their own complying labels.

(f) You may ask us to approve modified labeling requirements in this part 1039 if you show that it is necessary or appropriate. We will approve your request if your alternate label is consistent with the requirements of this part.

(g) If you obscure the engine label while installing the engine in the equipment such that the label cannot be read during normal maintenance, you must place a duplicate label on the equipment. If others install your engine in their equipment in a way that obscures the engine label, we require them to add a duplicate label on the equipment (see 40 CFR 1068.105); in that case, give them the number of duplicate labels they request and keep the following records for at least five years:

(1) Written documentation of the request from the equipment manufacturer.

(2) The number of duplicate labels you send for each engine family and the date you sent them.

(a) An engine configuration's maximum engine power is the maximum brake power point on the nominal power curve for the engine configuration, as defined in this section. Round the power value to the nearest whole kilowatt.

(b) The nominal power curve of an engine configuration is the relationship between maximum available engine brake power and engine speed for an engine, using the mapping procedures of 40 CFR part 1065, based on the manufacturer's design and production specifications for the engine. This information may also be expressed by a torque curve that relates maximum available engine torque with engine speed.

(c) The nominal power curve must be within the range of the actual power curves of production engines considering normal production variability. If after production begins it is determined that your nominal power curve does not represent production engines, we may require you to amend your application for certification under § 1039.225.

(d) Throughout this part, references to a specific power value or a range of power values for an engine are based on maximum engine power. For example, the group of engines with maximum engine power above 560 kW may be referred to as engines above 560 kW.

Subpart C—Certifying Engine Families§ 1039.201What are the general requirements for obtaining a certificate of conformity?

(a) You must send us a separate application for a certificate of conformity for each engine family. A certificate of conformity is valid from the indicated effective date until December 31 of the model year for which it is issued.

(b) The application must contain all the information required by this part and must not include false or incomplete statements or information (see § 1039.255).

(c) We may ask you to include less information than we specify in this subpart, as long as you maintain all the information required by § 1039.250.

(d) You must use good engineering judgment for all decisions related to your application (see 40 CFR 1068.5).

(e) An authorized representative of your company must approve and sign the application.

(f) See § 1039.255 for provisions describing how we will process your application.

(g) We may require you to deliver your test engines to a facility we designate for our testing (see § 1039.235(c)).

(h) For engines that become new after being placed into service, such as engines converted to nonroad use after being used in motor vehicles, we may specify alternate certification provisions consistent with the intent of this part. See the definition of “new nonroad engine” in § 1039.801.

[69 FR 39213, June 29, 2004, as amended at 75 FR 22990, Apr. 30, 2010]§ 1039.205What must I include in my application?

This section specifies the information that must be in your application, unless we ask you to include less information under § 1039.201(c). We may require you to provide additional information to evaluate your application.

(a) Describe the engine family's specifications and other basic parameters of the engine's design and emission controls. List the fuel type on which your engines are designed to operate (for example, ultra low-sulfur diesel fuel). List each distinguishable engine configuration in the engine family. For each engine configuration, list the maximum engine power and the range of values for maximum engine power resulting from production tolerances, as described in § 1039.140.

(b) Explain how the emission-control system operates. Describe in detail all system components for controlling exhaust emissions, including all auxiliary-emission control devices (AECDs) and all fuel-system components you will install on any production or test engine. Identify the part number of each component you describe. For this paragraph (b), treat as separate AECDs any devices that modulate or activate differently from each other. Include all the following:

(1) Give a general overview of the engine, the emission-control strategies, and all AECDs.

(2) Describe each AECD's general purpose and function.

(3) Identify the parameters that each AECD senses (including measuring, estimating, calculating, or empirically deriving the values). Include equipment-based parameters and state whether you simulate them during testing with the applicable procedures.

(4) Describe the purpose for sensing each parameter.

(5) Identify the location of each sensor the AECD uses.

(6) Identify the threshold values for the sensed parameters that activate the AECD.

(7) Describe the parameters that the AECD modulates (controls) in response to any sensed parameters, including the range of modulation for each parameter, the relationship between the sensed parameters and the controlled parameters and how the modulation achieves the AECD's stated purpose. Use graphs and tables, as necessary.

(8) Describe each AECD's specific calibration details. This may be in the form of data tables, graphical representations, or some other description.

(9) Describe the hierarchy among the AECDs when multiple AECDs sense or modulate the same parameter. Describe whether the strategies interact in a comparative or additive manner and identify which AECD takes precedence in responding, if applicable.

(10) Explain the extent to which the AECD is included in the applicable test procedures specified in subpart F of this part.

(11) Do the following additional things for AECDs designed to protect engines or equipment:

(i) Identify the engine and/or equipment design limits that make protection necessary and describe any damage that would occur without the AECD.

(ii) Describe how each sensed parameter relates to the protected components' design limits or those operating conditions that cause the need for protection.

(iii) Describe the relationship between the design limits/parameters being protected and the parameters sensed or calculated as surrogates for those design limits/parameters, if applicable.

(iv) Describe how the modulation by the AECD prevents engines and/or equipment from exceeding design limits.

(v) Explain why it is necessary to estimate any parameters instead of measuring them directly and describe how the AECD calculates the estimated value, if applicable.

(vi) Describe how you calibrate the AECD modulation to activate only during conditions related to the stated need to protect components and only as needed to sufficiently protect those components in a way that minimizes the emission impact.

(c) [Reserved]

(d) Describe the engines you selected for testing and the reasons for selecting them.

(e) Describe the test equipment and procedures that you used, including any special or alternate test procedures you used (see § 1039.501).

(f) Describe how you operated the emission-data engine before testing, including the duty cycle and the number of engine operating hours used to stabilize emission levels. Explain why you selected the method of service accumulation. Describe any scheduled maintenance you did.

(g) List the specifications of the test fuel to show that it falls within the required ranges we specify in 40 CFR part 1065.

(h) Identify the engine family's useful life.

(i) Include the maintenance instructions you will give to the ultimate purchaser of each new nonroad engine (see § 1039.125).

(j) Include the emission-related installation instructions you will provide if someone else installs your engines in a piece of nonroad equipment (see § 1039.130).

(l) Identify the emission standards or FELs to which you are certifying engines in the engine family. Identify the ambient operating regions that will apply for NTE testing under § 1039.101(e)(4).

(m) Identify the engine family's deterioration factors and describe how you developed them (see § 1039.245). Present any emission test data you used for this.

(n) State that you operated your emission-data engines as described in the application (including the test procedures, test parameters, and test fuels) to show you meet the requirements of this part.

(o) Present emission data for hydrocarbons (such as NMHC or THCE, as applicable), NOX, PM, and CO on an emission-data engine to show your engines meet the applicable duty-cycle emission standards we specify in § 1039.101. Show emission figures before and after applying adjustment factors for regeneration and deterioration factors for each engine. Include emission results for each mode if you do discrete-mode testing under § 1039.505. Present emission data to show that you meet any applicable smoke standards we specify in § 1039.105. If we specify more than one grade of any fuel type (for example, high-sulfur and low-sulfur diesel fuel), you need to submit test data only for one grade, unless the regulations of this part specify otherwise for your engine. Note that § 1039.235 allows you to submit an application in certain cases without new emission data.

(p) State that all the engines in the engine family comply with the not-to-exceed emission standards we specify in subpart B of this part for all normal operation and use when tested as specified in § 1039.515. Describe any relevant testing, engineering analysis, or other information in sufficient detail to support your statement.

(q) For engines above 560 kW, include information showing how your emission controls will function during normal in-use transient operation. For example, this might include the following:

(1) Emission data from transient testing of engines using measurement systems designed for measuring in-use emissions.

(2) Comparison of the engine design for controlling transient emissions with that from engines for which you have emission data over the transient duty cycle for certification.

(3) Detailed descriptions of control algorithms and other design parameters for controlling transient emissions.

(r) Report test results as follows:

(1) Report all test results involving measurement of pollutants for which emission standards apply. Include test results from invalid tests or from any other tests, whether or not they were conducted according to the test procedures of subpart F of this part. We may ask you to send other information to confirm that your tests were valid under the requirements of this part and 40 CFR part 1065.

(t) Provide the information to read, record, and interpret all the information broadcast by an engine's onboard computers and electronic control units. State that, upon request, you will give us any hardware, software, or tools we would need to do this. If you broadcast a surrogate parameter for torque values, you must provide us what we need to convert these into torque units. You may reference any appropriate publicly released standards that define conventions for these messages and parameters. Format your information consistent with publicly released standards.

(u) Confirm that your emission-related installation instructions specify how to ensure that sampling of exhaust emissions will be possible after engines are installed in equipment and placed in service. If this cannot be done by simply adding a 20-centimeter extension to the exhaust pipe, show how to sample exhaust emissions in a way that prevents diluting the exhaust sample with ambient air.

(v) State whether your certification is intended to include engines used in stationary applications. State whether your certification is limited for certain engines. If this is the case, describe how you will prevent use of these engines in applications for which they are not certified. This applies for engines such as the following:

(1) Constant-speed engines.

(2) Engines used for transportation refrigeration units that you certify under the provisions of § 1039.645.

(3) Hand-startable engines certified under the provisions of § 1039.101(c).

(4) Engines above 560 KW that are not certified to emission standards for generator-set engines.

(w) Unconditionally certify that all the engines in the engine family comply with the requirements of this part, other referenced parts of the CFR, and the Clean Air Act.

(x) Include good-faith estimates of U.S.-directed production volumes. Include a justification for the estimated production volumes if they are substantially different than actual production volumes in earlier years for similar models.

(y) Include the information required by other subparts of this part. For example, include the information required by § 1039.725 if you participate in the ABT program.

(z) Include other applicable information, such as information specified in this part or 40 CFR part 1068 related to requests for exemptions.

(aa) Name an agent for service located in the United States. Service on this agent constitutes service on you or any of your officers or employees for any action by EPA or otherwise by the United States related to the requirements of this part.

If you send us information before you finish the application, we will review it and make any appropriate determinations, especially for questions related to engine family definitions, auxiliary emission-control devices, deterioration factors, testing for service accumulation, maintenance, and NTE deficiencies and carve-outs. Decisions made under this section are considered to be preliminary approval, subject to final review and approval. We will generally not reverse a decision where we have given you preliminary approval, unless we find new information supporting a different decision. If you request preliminary approval related to the upcoming model year or the model year after that, we will make best-efforts to make the appropriate determinations as soon as practicable. We will generally not provide preliminary approval related to a future model year more than two years ahead of time.

You may amend your emission-related maintenance instructions after you submit your application for certification as long as the amended instructions remain consistent with the provisions of § 1039.125. You must send the Designated Compliance Officer a written request to amend your application for certification for an engine family if you want to change the emission-related maintenance instructions in a way that could affect emissions. In your request, describe the proposed changes to the maintenance instructions. If operators follow the original maintenance instructions rather than the newly specified maintenance, this does not allow you to disqualify those engines from in-use testing or deny a warranty claim.

(a) If you are decreasing or eliminating any specified maintenance, you may distribute the new maintenance instructions to your customers 30 days after we receive your request, unless we disapprove your request. This would generally include replacing one maintenance step with another. We may approve a shorter time or waive this requirement.

(b) If your requested change would not decrease the specified maintenance, you may distribute the new maintenance instructions anytime after you send your request. For example, this paragraph (b) would cover adding instructions to increase the frequency of filter changes for engines in severe-duty applications.

(c) You need not request approval if you are making only minor corrections (such as correcting typographical mistakes), clarifying your maintenance instructions, or changing instructions for maintenance unrelated to emission control. We may ask you to send us copies of maintenance instructions revised under this paragraph (c).

Before we issue you a certificate of conformity, you may amend your application to include new or modified engine configurations, subject to the provisions of this section. After we have issued your certificate of conformity, you may send us an amended application requesting that we include new or modified engine configurations within the scope of the certificate, subject to the provisions of this section. You must amend your application if any changes occur with respect to any information that is included or should be included in your application.

(a) You must amend your application before you take any of the following actions:

(1) Add an engine configuration to an engine family. In this case, the engine configuration added must be consistent with other engine configurations in the engine family with respect to the criteria listed in § 1039.230.

(2) Change an engine configuration already included in an engine family in a way that may affect emissions, or change any of the components you described in your application for certification. This includes production and design changes that may affect emissions any time during the engine's lifetime.

(3) Modify an FEL for an engine family as described in paragraph (f) of this section.

(b) To amend your application for certification, send the relevant information to the Designated Compliance Officer.

(1) Describe in detail the addition or change in the engine model or configuration you intend to make.

(2) Include engineering evaluations or data showing that the amended engine family complies with all applicable requirements. You may do this by showing that the original emission-data engine is still appropriate for showing that the amended family complies with all applicable requirements.

(3) If the original emission-data engine for the engine family is not appropriate to show compliance for the new or modified engine configuration, include new test data showing that the new or modified engine configuration meets the requirements of this part.

(c) We may ask for more test data or engineering evaluations. You must give us these within 30 days after we request them.

(d) For engine families already covered by a certificate of conformity, we will determine whether the existing certificate of conformity covers your newly added or modified engine. You may ask for a hearing if we deny your request (see § 1039.820).

(e) For engine families already covered by a certificate of conformity, you may start producing the new or modified engine configuration anytime after you send us your amended application and before we make a decision under paragraph (d) of this section. However, if we determine that the affected engines do not meet applicable requirements, we will notify you to cease production of the engines and may require you to recall the engines at no expense to the owner. Choosing to produce engines under this paragraph (e) is deemed to be consent to recall all engines that we determine do not meet applicable emission standards or other requirements and to remedy the nonconformity at no expense to the owner. If you do not provide information required under paragraph (c) of this section within 30 days after we request it, you must stop producing the new or modified engines.

(f) You may ask us to approve a change to your FEL in certain cases after the start of production. The changed FEL may not apply to engines you have already introduced into U.S. commerce, except as described in this paragraph (f). If we approve a changed FEL after the start of production, you must include the new FEL on the emission control information label for all engines produced after the change. You may ask us to approve a change to your FEL in the following cases:

(1) You may ask to raise your FEL for your engine family at any time. In your request, you must show that you will still be able to meet the emission standards as specified in subparts B and H of this part. If you amend your application by submitting new test data to include a newly added or modified engine, as described in paragraph (b)(3) of this section, use the appropriate FELs with corresponding production volumes to calculate emission credits for the model year, as described in subpart H of this part. In all other circumstances, you must use the higher FEL for the entire engine family to calculate emission credits under subpart H of this part.

(2) You may ask to lower the FEL for your engine family only if you have test data from production engines showing that emissions are below the proposed lower FEL. The lower FEL applies only to engines you produce after we approve the new FEL. Use the appropriate FELs with corresponding production volumes to calculate emission credits for the model year, as described in subpart H of this part.

(a) For purposes of certification, divide your product line into families of engines that are expected to have similar emission characteristics throughout the useful life as described in this section. Your engine family is limited to a single model year.

(b) Group engines in the same engine family if they are the same in all the following aspects:

(8) Method of control for engine operation other than governing (i.e., mechanical or electronic).

(9) Power category.

(10) Numerical level of the emission standards that apply to the engine.

(c) You may subdivide a group of engines that is identical under paragraph (b) of this section into different engine families if you show the expected emission characteristics are different during the useful life.

(d) In unusual circumstances, you may group engines that are not identical with respect to the things listed in paragraph (b) of this section in the same engine family if you show that their emission characteristics during the useful life will be similar.

(e) If you combine engines from different power categories into a single engine family under paragraph (d) of this section, you must certify the engine family to the more stringent set of standards from the two power categories in that model year.

This section describes the emission testing you must perform to show compliance with the emission standards in § 1039.101(a) and (b) or § 1039.102(a) and (b). See § 1039.205(p) regarding emission testing related to the NTE standards. See § 1039.240, § 1039.245, and 40 CFR part 1065, subpart E, regarding service accumulation before emission testing.

(a) Test your emission-data engines using the procedures and equipment specified in subpart F of this part.

(b) Select an emission-data engine from each engine family for testing. Select the engine configuration with the highest volume of fuel injected per cylinder per combustion cycle at the point of maximum torque—unless good engineering judgment indicates that a different engine configuration is more likely to exceed (or have emissions nearer to) an applicable emission standard or FEL. If two or more engines have the same fueling rate at maximum torque, select the one with the highest fueling rate at rated speed. In making this selection, consider all factors expected to affect emission-control performance and compliance with the standards, including emission levels of all exhaust constituents, especially NOX and PM.

(c) We may measure emissions from any of your emission-data engines or other engines from the engine family, as follows:

(1) We may decide to do the testing at your plant or any other facility. If we do this, you must deliver the engine to a test facility we designate. The engine you provide must include appropriate manifolds, aftertreatment devices, electronic control units, and other emission-related components not normally attached directly to the engine block. If we do the testing at your plant, you must schedule it as soon as possible and make available the instruments, personnel, and equipment we need.

(2) If we measure emissions on one of your engines, the results of that testing become the official emission results for the engine. Unless we later invalidate these data, we may decide not to consider your data in determining if your engine family meets applicable requirements.

(3) Before we test one of your engines, we may set its adjustable parameters to any point within the physically adjustable ranges (see § 1039.115(e)).

(4) Before we test one of your engines, we may calibrate it within normal production tolerances for anything we do not consider an adjustable parameter. For example, this would apply for an engine parameter that is subject to production variability because it is adjustable during production, but is not considered an adjustable parameter (as defined in § 1039.801) because it is permanently sealed.

(d) You may ask to use carryover emission data from a previous model year instead of doing new tests, but only if all the following are true:

(1) The engine family from the previous model year differs from the current engine family only with respect to model year or other characteristics unrelated to emissions.

(2) The emission-data engine from the previous model year remains the appropriate emission-data engine under paragraph (b) of this section.

(3) The data show that the emission-data engine would meet all the requirements that apply to the engine family covered by the application for certification.

(e) We may require you to test a second engine of the same or different configuration in addition to the engine tested under paragraph (b) of this section.

(f) If you use an alternate test procedure under 40 CFR 1065.10 and later testing shows that such testing does not produce results that are equivalent to the procedures specified in subpart F of this part, we may reject data you generated using the alternate procedure.

(g) Measure CO2 and CH4 with each low-hour certification test using the procedures specified in 40 CFR part 1065 in the 2011 and 2012 model years, respectively. Also measure N2O with each low-hour certification test using the procedures specified in 40 CFR part 1065 starting in the 2013 model year for any engine family that depends on NOx aftertreatment to meet emission standards. Small-volume engine manufacturers may omit measurement of N2O and CH4. These measurements are not required for NTE testing. Use the same units and modal calculations as for your other results to report a single weighted value for each constituent. Round the final values as follows:

(a) For purposes of certification, your engine family is considered in compliance with the emission standards in § 1039.101(a) and (b), § 1039.102(a) and (b), § 1039.104, and § 1039.105 if all emission-data engines representing that family have test results showing official emission results and deteriorated emission levels at or below these standards. This also applies for all test points for emission-data engines within the family used to establish deterioration factors. Note that your FELs are considered to be the applicable emission standards with which you must comply if you participate in the ABT program in subpart H of this part.

(b) Your engine family is deemed not to comply if any emission-data engine representing that family has test results showing an official emission result or a deteriorated emission level for any pollutant that is above an applicable emission standard. Similarly, your engine family is deemed not to comply if any emission-data engine representing that family has test results showing any emission level above the applicable not-to-exceed emission standard for any pollutant. This also applies for all test points for emission-data engines within the family used to establish deterioration factors.

(c) To compare emission levels from the emission-data engine with the applicable emission standards, apply deterioration factors to the measured emission levels for each pollutant. Section 1039.245 specifies how to test your engine to develop deterioration factors that represent the deterioration expected in emissions over your engines' full useful life. Your deterioration factors must take into account any available data from in-use testing with similar engines. Small-volume engine manufacturers may use assigned deterioration factors that we establish. Apply deterioration factors as follows:

(1) Additive deterioration factor for exhaust emissions. Except as specified in paragraph (c)(2) of this section, use an additive deterioration factor for exhaust emissions. An additive deterioration factor is the difference between exhaust emissions at the end of the useful life and exhaust emissions at the low-hour test point. In these cases, adjust the official emission results for each tested engine at the selected test point by adding the factor to the measured emissions. If the factor is less than zero, use zero. Additive deterioration factors must be specified to one more decimal place than the applicable standard.

(2) Multiplicative deterioration factor for exhaust emissions. Use a multiplicative deterioration factor if good engineering judgment calls for the deterioration factor for a pollutant to be the ratio of exhaust emissions at the end of the useful life to exhaust emissions at the low-hour test point. For example, if you use aftertreatment technology that controls emissions of a pollutant proportionally to engine-out emissions, it is often appropriate to use a multiplicative deterioration factor. Adjust the official emission results for each tested engine at the selected test point by multiplying the measured emissions by the deterioration factor. If the factor is less than one, use one. A multiplicative deterioration factor may not be appropriate in cases where testing variability is significantly greater than engine-to-engine variability. Multiplicative deterioration factors must be specified to one more significant figure than the applicable standard.

(3) Deterioration factor for smoke. Deterioration factors for smoke are always additive, as described in paragraph (c)(1) of this section.

(4) Deterioration factor for crankcase emissions. If your engine vents crankcase emissions to the exhaust or to the atmosphere, you must account for crankcase emission deterioration, using good engineering judgment. You may use separate deterioration factors for crankcase emissions of each pollutant (either multiplicative or additive) or include the effects in combined deterioration factors that include exhaust and crankcase emissions together for each pollutant.

(d) Collect emission data using measurements to one more decimal place than the applicable standard. Apply the deterioration factor to the official emission result, as described in paragraph (c) of this section, then round the adjusted figure to the same number of decimal places as the emission standard. Compare the rounded emission levels to the emission standard for each emission-data engine. In the case of NOX+NMHC standards, apply the deterioration factor to each pollutant and then add the results before rounding.

(e) For engines subject to NMHC standards, you may base compliance on total hydrocarbon (THC) emissions. Indicate in your application for certification if you are using this option. If you do, measure THC emissions and calculate NMHC emissions as 98 percent of THC emissions, as shown in the following equation:

This section describes how to determine deterioration factors, either with an engineering analysis, with pre-existing test data, or with new emission measurements. Apply these deterioration factors to determine whether your engines will meet the duty-cycle emission standards throughout the useful life as described in § 1039.240.

(a) You may ask us to approve deterioration factors for an engine family with established technology based on engineering analysis instead of testing. Engines certified to a NOX+NMHC standard or FEL greater than the Tier 3 NOX+NMHC standard described in 40 CFR 89.112 are considered to rely on established technology for gaseous emission control, except that this does not include any engines that use exhaust-gas recirculation or aftertreatment. In most cases, technologies used to meet the Tier 1 and Tier 2 emission standards would be considered to be established technology.

(b) You may ask us to approve deterioration factors for an engine family based on emission measurements from similar highway or nonroad engines if you have already given us these data for certifying the other engines in the same or earlier model years. Use good engineering judgment to decide whether the two engines are similar. We will approve your request if you show us that the emission measurements from other engines reasonably represent in-use deterioration for the engine family for which you have not yet determined deterioration factors.

(c) If you are unable to determine deterioration factors for an engine family under paragraph (a) or (b) of this section, select engines, subsystems, or components for testing. Determine deterioration factors based on service accumulation and related testing to represent the deterioration expected from in-use engines over the full useful life. You must measure emissions from the emission-data engine at least three times with evenly spaced intervals of service accumulation. You may use extrapolation to determine deterioration factors once you have established a trend of changing emissions with age for each pollutant. You may use an engine installed in nonroad equipment to accumulate service hours instead of running the engine only in the laboratory. You may perform maintenance on emission-data engines as described in § 1039.125 and 40 CFR part 1065, subpart E. Use good engineering judgment for all aspects of the effort to establish deterioration factors under this paragraph (c).

(d) Include the following information in your application for certification:

(1) If you use test data from a different engine family, explain why this is appropriate and include all the emission measurements on which you base the deterioration factor.

(2) If you determine your deterioration factors based on engineering analysis, explain why this is appropriate and include a statement that all data, analyses, evaluations, and other information you used are available for our review upon request.

(3) If you do testing to determine deterioration factors, describe the form and extent of service accumulation, including a rationale for selecting the service-accumulation period and the method you use to accumulate hours.

(a) Within 45 days after the end of the model year, send the Designated Compliance Officer a report describing the following information about engines you produced during the model year:

(1) Report the total number of engines you produced in each engine family by maximum engine power, total displacement, and the type of fuel system.

(2) If you produced exempted engines under the provisions of § 1039.625, report the number of exempted engines you produced for each engine model and identify the buyer or shipping destination for each exempted engine.

(b) Organize and maintain the following records:

(1) A copy of all applications and any summary information you send us.

(2) Any of the information we specify in § 1039.205 that you were not required to include in your application.

(3) A detailed history of each emission-data engine. For each engine, describe all of the following:

(i) The emission-data engine's construction, including its origin and buildup, steps you took to ensure that it represents production engines, any components you built specially for it, and all the components you include in your application for certification.

(ii) How you accumulated engine operating hours (service accumulation), including the dates and the number of hours accumulated.

(iii) All maintenance, including modifications, parts changes, and other service, and the dates and reasons for the maintenance.

(iv) All your emission tests, including documentation on routine and standard tests, as specified in part 40 CFR part 1065, and the date and purpose of each test.

(v) All tests to diagnose engine or emission-control performance, giving the date and time of each and the reasons for the test.

(vi) Any other significant events.

(4) Production figures for each engine family divided by assembly plant.

(5) Keep a list of engine identification numbers for all the engines you produce under each certificate of conformity.

(c) Keep data from routine emission tests (such as test cell temperatures and relative humidity readings) for one year after we issue the associated certificate of conformity. Keep all other information specified in this section for eight years after we issue your certificate.

(d) Store these records in any format and on any media, as long as you can promptly send us organized, written records in English if we ask for them. You must keep these records readily available. We may review them at any time.

(a) If we determine your application is complete and shows that the engine family meets all the requirements of this part and the Act, we will issue a certificate of conformity for your engine family for that model year. We may make the approval subject to additional conditions.

(b) We may deny your application for certification if we determine that your engine family fails to comply with emission standards or other requirements of this part or the Clean Air Act. We will base our decision on all available information. If we deny your application, we will explain why in writing.

(c) In addition, we may deny your application or suspend or revoke your certificate if you do any of the following:

(1) Refuse to comply with any testing or reporting requirements.

(2) Submit false or incomplete information (paragraph (e) of this section applies if this is fraudulent).

(3) Render inaccurate any test data.

(4) Deny us from completing authorized activities despite our presenting a warrant or court order (see 40 CFR 1068.20). This includes a failure to provide reasonable assistance.

(5) Produce engines for importation into the United States at a location where local law prohibits us from carrying out authorized activities.

(6) Fail to supply requested information or amend your application to include all engines being produced.

(7) Take any action that otherwise circumvents the intent of the Act or this part.

(d) We may void your certificate if you do not keep the records we require or do not give us information as required under this part or the Act.

(e) We may void your certificate if we find that you intentionally submitted false or incomplete information.

(f) If we deny your application or suspend, revoke, or void your certificate, you may ask for a hearing (see § 1039.820).

We may perform in-use testing of any engine subject to the standards of this part. However, we will limit recall testing to the first 75 percent of each engine's useful life as specified in § 1039.101(g).

Subpart F—Test Procedures§ 1039.501How do I run a valid emission test?

(a) Use the equipment and procedures for compression-ignition engines in 40 CFR part 1065 to determine whether engines meet the duty-cycle emission standards in subpart B of this part. Measure the emissions of all the exhaust constituents subject to emissions standards as specified in 40 CFR part 1065. Measure CO2, N2O, and CH4 as described in § 1039.235. Use the applicable duty cycles specified in §§ 1039.505 and 1039.510.

(c) Measure smoke using the procedures in 40 CFR part 86, subpart I, for evaluating whether engines meet the smoke standards in § 1039.105, except that you may test two-cylinder engines with an exhaust muffler like those installed on in-use engines.

(d) Use the fuels specified in § 1039.104(e) and 40 CFR part 1065 to perform valid tests.

(1) For service accumulation, use the test fuel or any commercially available fuel that is representative of the fuel that in-use engines will use.

(2) For diesel-fueled engines, use the appropriate diesel fuel specified in 40 CFR part 1065 for emission testing. Unless we specify otherwise, the appropriate diesel test fuel is the ultra low-sulfur diesel fuel. If we allow you to use a test fuel with higher sulfur levels, identify the test fuel in your application for certification and ensure that the emission control information label is consistent with your selection of the test fuel (see § 1039.135(c)(9)). For example, do not test with ultra low-sulfur diesel fuel if you intend to label your engines to allow use of diesel fuel with sulfur concentrations up to 500 ppm.

(e) You may use special or alternate procedures to the extent we allow them under 40 CFR 1065.10.

(f) This subpart is addressed to you as a manufacturer, but it applies equally to anyone who does testing for you, and to us when we perform testing to determine if your engines meet emission standards.

This section describes how to test engines under steady-state conditions. In some cases, we allow you to choose the appropriate steady-state duty cycle for an engine. In these cases, you must use the duty cycle you select in your application for certification for all testing you perform for that engine family. If we test your engines to confirm that they meet emission standards, we will use the duty cycles you select for your own testing. We may also perform other testing as allowed by the Clean Air Act.

(a) You may perform steady-state testing with either discrete-mode or ramped-modal cycles, as follows:

(1) For discrete-mode testing, sample emissions separately for each mode, then calculate an average emission level for the whole cycle using the weighting factors specified for each mode. Calculate cycle statistics and compare with the established criteria as specified in 40 CFR 1065.514 to confirm that the test is valid. Operate the engine and sampling system as follows:

(i) Engines with NOXaftertreatment. For engines that depend on aftertreatment to meet the NOX emission standard, operate the engine for 5-6 minutes, then sample emissions for 1-3 minutes in each mode. You may extend the sampling time to improve measurement accuracy of PM emissions, using good engineering judgment. If you have a longer sampling time for PM emissions, calculate and validate cycle statistics separately for the gaseous and PM sampling periods.

(ii) Engines without NOX aftertreatment. For other engines, operate the engine for at least 5 minutes, then sample emissions for at least 1 minute in each mode.

(2) For ramped-modal testing, start sampling at the beginning of the first mode and continue sampling until the end of the last mode. Calculate emissions and cycle statistics the same as for transient testing.

(b) Measure emissions by testing the engine on a dynamometer with one of the following duty cycles to determine whether it meets the steady-state emission standards in § 1039.101(b):

(1) Use the 5-mode duty cycle or the corresponding ramped-modal cycle described in Appendix II of this part for constant-speed engines. Note that these cycles do not apply to all engines used in constant-speed applications, as described in § 1039.801.

(2) Use the 6-mode duty cycle or the corresponding ramped-modal cycle described in Appendix III of this part for variable-speed engines below 19 kW. You may instead use the 8-mode duty cycle or the corresponding ramped-modal cycle described in Appendix IV of this part if some engines from your engine family will be used in applications that do not involve governing to maintain engine operation around rated speed.

(3) Use the 8-mode duty cycle or the corresponding ramped-modal cycle described in Appendix IV of this part for variable-speed engines at or above 19 kW.

(c) During idle mode, operate the engine at its warm idle speed as described in 40 CFR part 1065.

(d) For constant-speed engines whose design prevents full-load operation for extended periods, you may ask for approval under 40 CFR 1065.10(c) to replace full-load operation with the maximum load for which the engine is designed to operate for extended periods.

(e) See 40 CFR part 1065 for detailed specifications of tolerances and calculations.

(f) For those cases where transient testing is not necessary, perform the steady-state test according to this section after an appropriate warm-up period, consistent with 40 CFR part 1065, subpart F.

(g) To allow non-motoring dynamometers on cycles with idle, you may omit additional points from the duty-cycle regression as follows:

(1) For variable-speed engines with low-speed governors, you may omit speed, torque, and power points from the duty-cycle regression statistics if the following are met:

(i) The engine operator demand is at its minimum.

(ii) The dynamometer demand is at its minimum.

(iii) It is an idle point fnref = 0 % (idle) and Tref = 0 % (idle).

(iv) Tref < T ≤ 5 % · Tmax mapped.

(2) For variable-speed engines without low-speed governors, you may omit torque and power points from the duty-cycle regression statistics if the following are met:

(i) The dynamometer demand is at its minimum.

(ii) It is an idle point fnref = 0 % (idle) and Tref = 0 % (idle).

(iii) fnref − (2 % · fntest) < fn < fnref + (2 % · fntest).

(iv) Tref < T ≤ 5 % · Tmax mapped.

[69 FR 39213, June 29, 2004, as amended at 73 FR 37241, June 30, 2008]§ 1039.510Which duty cycles do I use for transient testing?

(a) Measure emissions by testing the engine on a dynamometer with one of the following transient duty cycles to determine whether it meets the transient emission standards in § 1039.101(a):

(1) For variable-speed engines, use the transient duty cycle described in Appendix VI of this part.

(2) [Reserved]

(b) The transient test sequence consists of an initial run through the transient duty cycle from a cold start, 20 minutes with no engine operation, then a final run through the same transient duty cycle. Start sampling emissions immediately after you start the engine. Calculate the official transient emission result from the following equation:

ER30AP10.002

(c) Calculate cycle statistics and compare with the established criteria as specified in 40 CFR 1065.514 to confirm that the test is valid.

(a) General provisions. The provisions in 40 CFR 86.1370-2007 apply for determining whether an engine meets the not-to-exceed emission standards in § 1039.101(e). Interpret references to vehicles and vehicle operation to mean equipment and equipment operation.

(b) Special PM zone. For engines certified to a PM standard or FEL above 0.07 g/kW-hr, a modified NTE control area applies for PM emissions only. The speeds and loads to be excluded are determined based on speeds B and C, determined according to the provisions of 40 CFR 86.1360-2007(c). One of the following provisions applies:

(1) If the C speed is below 2400 rpm, exclude the speed and load points to the right of or below the line formed by connecting the following two points on a plot of speed-vs.-power:

(i) 30% of maximum power at the B speed; however, use the power value corresponding to the engine operation at 30% of maximum torque at the B speed if this is greater than 30% of maximum power at the B speed.

(ii) 70% of maximum power at 100% speed.

(2) If the C speed is at or above 2400 rpm, exclude the speed and load points to the right of the line formed by connecting the two points in paragraphs (b)(2)(i) and (ii) of this section (the 30% and 50% torque/power points) and below the line formed by connecting the two points in paragraphs (b)(2)(ii) and (iii) of this section (the 50% and 70% torque/power points). The 30%, 50%, and 70% torque/power points are defined as follows:

(i) 30% of maximum power at the B speed; however, use the power value corresponding to the engine operation at 30% of maximum torque at the B speed if this is greater than 30% of maximum power at the B speed.

(ii) 50% of maximum power at 2400 rpm.

(iii) 70% of maximum power at 100% speed.

§ 1039.520What testing must I perform to establish deterioration factors?

Sections 1039.240 and 1039.245 describe the method for testing that must be performed to establish deterioration factors for an engine family.

This section describes how to adjust emission results from engines using aftertreatment technology with infrequent regeneration events. For this section, “regeneration” means an intended event during which emission levels change while the system restores aftertreatment performance. For example, exhaust gas temperatures may increase temporarily to remove sulfur from adsorbers or to oxidize accumulated particulate matter in a trap. For this section, “infrequent” refers to regeneration events that are expected to occur on average less than once over the applicable transient duty cycle or ramped-modal cycle, or on average less than once per typical mode in a discrete-mode test.

(a) Developing adjustment factors. Develop an upward adjustment factor and a downward adjustment factor for each pollutant based on measured emission data and observed regeneration frequency. Adjustment factors should generally apply to an entire engine family, but you may develop separate adjustment factors for different engine configurations within an engine family. If you use adjustment factors for certification, you must identify the frequency factor, F, from paragraph (b) of this section in your application for certification and use the adjustment factors in all testing for that engine family. You may use carryover or carry-across data to establish adjustment factors for an engine family, as described in § 1039.235(d), consistent with good engineering judgment. All adjustment factors for regeneration are additive. Determine adjustment factors separately for different test segments. For example, determine separate adjustment factors for hot-start and cold-start test segments and for different modes of a discrete-mode steady-state test. You may use either of the following different approaches for engines that use aftertreatment with infrequent regeneration events:

(1) You may disregard this section if regeneration does not significantly affect emission levels for an engine family (or configuration) or if it is not practical to identify when regeneration occurs. If you do not use adjustment factors under this section, your engines must meet emission standards for all testing, without regard to regeneration.

(2) If your engines use aftertreatment technology with extremely infrequent regeneration and you are unable to apply the provisions of this section, you may ask us to approve an alternate methodology to account for regeneration events.

(b) Calculating average adjustment factors. Calculate the average adjustment factor (EFA) based on the following equation:

EFA = (F)(EFH) + (1-F)(EFL)Where:F = the frequency of the regeneration event in terms of the fraction of tests during which the regeneration occurs.EFH = measured emissions from a test segment in which the regeneration occurs.EFL = measured emissions from a test segment in which the regeneration does not occur.

(c) Applying adjustment factors. Apply adjustment factors based on whether regeneration occurs during the test run. You must be able to identify regeneration in a way that is readily apparent during all testing.

(1) If regeneration does not occur during a test segment, add an upward adjustment factor to the measured emission rate. Determine the upward adjustment factor (UAF) using the following equation:

UAF = EFA − EFL

(2) If regeneration occurs or starts to occur during a test segment, subtract a downward adjustment factor from the measured emission rate. Determine the downward adjustment factor (DAF) using the following equation:

DAF = EFH − EFA

(d) Sample calculation. If EFL is 0.10 g/kW-hr, EFH is 0.50 g/kW-hr, and F is 0.1 (the regeneration occurs once for each ten tests), then:

Engine and equipment manufacturers, as well as owners, operators, and rebuilders of engines subject to the requirements of this part, and all other persons, must observe the provisions of this part, the requirements and prohibitions in 40 CFR part 1068, and the provisions of the Act.

(a) General provisions. If you are an engine manufacturer, this section allows you to introduce new nonroad engines into commerce if they are already certified to the requirements that apply to compression-ignition engines under 40 CFR parts 85 and 86 for the appropriate model year. If you comply with all the provisions of this section, we consider the certificate issued under 40 CFR part 86 for each engine to also be a valid certificate of conformity under this part 1039 for its model year, without a separate application for certification under the requirements of this part 1039. See § 1039.610 for similar provisions that apply to engines certified to chassis-based standards for motor vehicles.

(b) Equipment-manufacturer provisions. If you are not an engine manufacturer, you may produce nonroad equipment using motor-vehicle engines under this section as long as you meet all the requirements and conditions specified in paragraph (d) of this section. You must also add the fuel-inlet label we specify in § 1039.135(e). If you modify the motor-vehicle engine in any of the ways described in paragraph (d)(2) of this section, we will consider you a manufacturer of a new nonroad engine. Such engine modifications prevent you from using the provisions of this section.

(c) Liability. Engines for which you meet the requirements of this section are exempt from all the requirements and prohibitions of this part, except for those specified in this section. Engines exempted under this section must meet all the applicable requirements from 40 CFR parts 85 and 86. This applies to engine manufacturers, equipment manufacturers who use these engines, and all other persons as if these engines were used in a motor vehicle. The prohibited acts of 40 CFR 1068.101(a)(1) apply to these new engines and equipment; however, we consider the certificate issued under 40 CFR part 86 for each engine to also be a valid certificate of conformity under this part 1039 for its model year. If we make a determination that these engines do not conform to the regulations during their useful life, we may require you to recall them under 40 CFR part 86 or 40 CFR 1068.505.

(d) Specific requirements. If you are an engine manufacturer or equipment manufacturer and meet all the following criteria and requirements regarding your new nonroad engine, the engine is eligible for an exemption under this section:

(1) Your engine must be covered by a valid certificate of conformity issued under 40 CFR part 86.

(2) You must not make any changes to the certified engine that could reasonably be expected to increase its exhaust emissions for any pollutant, or its evaporative emissions if it is subject to evaporative-emission standards. For example, if you make any of the following changes to one of these engines, you do not qualify for this exemption:

(i) Change any fuel system parameters from the certified configuration.

(ii) Change, remove, or fail to properly install any other component, element of design, or calibration specified in the engine manufacturer's application for certification. This includes aftertreatment devices and all related components.

(iii) Modify or design the engine cooling system so that temperatures or heat rejection rates are outside the original engine manufacturer's specified ranges.

(3) You must show that fewer than 50 percent of the engine family's total sales in the United States are used in nonroad applications. This includes engines used in any application without regard to which company manufactures the vehicle or equipment. Show this as follows:

(i) If you are the original manufacturer of the engine, base this showing on your sales information.

(ii) In all other cases, you must get the original manufacturer of the engine to confirm this based on its sales information.

(4) You must ensure that the engine has the label we require under 40 CFR part 86.

(5) You must add a permanent supplemental label to the engine in a position where it will remain clearly visible after installation in the equipment. In the supplemental label, do the following:

(i) Include the heading: “NONROAD ENGINE EMISSION CONTROL INFORMATION”.

(ii) Include your full corporate name and trademark. You may instead include the full corporate name and trademark of another company you choose to designate.

(iii) State: “THIS ENGINE WAS ADAPTED FOR NONROAD USE WITHOUT AFFECTING ITS EMISSION CONTROLS. THE EMISSION-CONTROL SYSTEM DEPENDS ON THE USE OF FUEL MEETING SPECIFICATIONS THAT APPLY FOR MOTOR-VEHICLE APPLICATIONS. OPERATING THE ENGINE ON OTHER FUELS MAY BE A VIOLATION OF FEDERAL LAW.”.

(iv) State the date you finished modifying the engine (month and year), if applicable.

(6) The original and supplemental labels must be readily visible after the engine is installed in the equipment or, if the equipment obscures the engine's emission control information label, the equipment manufacturer must attach duplicate labels, as described in 40 CFR 1068.105.

(7) You must make sure that nonroad equipment produced under this section will have the fueling label we specify in § 1039.135(c)(9)(i).

(8) Send the Designated Compliance Officer a signed letter by the end of each calendar year (or less often if we tell you) with all the following information:

(i) Identify your full corporate name, address, and telephone number.

(ii) List the engine or equipment models you expect to produce under this exemption in the coming year and describe your basis for meeting the sales restrictions of paragraph (d)(3) of this section.

(iii) State: “We produce each listed [engine or equipment] model for nonroad application without making any changes that could increase its certified emission levels, as described in 40 CFR 1039.605.”.

(e) Failure to comply. If your engines do not meet the criteria listed in paragraph (d) of this section, they will be subject to the standards, requirements, and prohibitions of this part 1039 and the certificate issued under 40 CFR part 86 will not be deemed to also be a certificate issued under this part 1039. Introducing these engines into commerce without a valid exemption or certificate of conformity under this part violates the prohibitions in 40 CFR 1068.101(a)(1).

(f) Data submission. We may require you to send us emission test data on any applicable nonroad duty cycles.

(g) Participation in averaging, banking and trading. Engines adapted for nonroad use under this section may not generate or use emission credits under this part 1039. These engines may generate credits under the ABT provisions in 40 CFR part 86. These engines must use emission credits under 40 CFR part 86 if they are certified to an FEL that exceeds an applicable standard under 40 CFR part 86.

(a) General provisions. If you are a motor-vehicle manufacturer, this section allows you to introduce new nonroad engines or equipment into commerce if the vehicle is already certified to the requirements that apply under 40 CFR parts 85 and 86 for the appropriate model year. If you comply with all of the provisions of this section, we consider the certificate issued under 40 CFR part 86 for each motor vehicle to also be a valid certificate of conformity for the engine under this part 1039 for its model year, without a separate application for certification under the requirements of this part 1039. See § 1039.605 for similar provisions that apply to motor-vehicle engines produced for nonroad equipment.

(b) Equipment-manufacturer provisions. If you are not a motor-vehicle manufacturer, you may produce nonroad equipment from motor vehicles under this section as long as you meet all the requirements and conditions specified in paragraph (d) of this section. You must also add the fuel-inlet label we specify in § 1039.135(e). If you modify the motor vehicle or its engine in any of the ways described in paragraph (d)(2) of this section, we will consider you a manufacturer of a new nonroad engine. Such modifications prevent you from using the provisions of this section.

(c) Liability. Engines, vehicles, and equipment for which you meet the requirements of this section are exempt from all the requirements and prohibitions of this part, except for those specified in this section. Engines exempted under this section must meet all the applicable requirements from 40 CFR parts 85 and 86. This applies to engine manufacturers, equipment manufacturers, and all other persons as if the nonroad equipment were motor vehicles. The prohibited acts of 40 CFR 1068.101(a)(1) apply to these new pieces of equipment; however, we consider the certificate issued under 40 CFR part 86 for each motor vehicle to also be a valid certificate of conformity for the engine under this part 1039 for its model year. If we make a determination that these engines, vehicles, or equipment do not conform to the regulations during their useful life, we may require you to recall them under 40 CFR part 86 or 40 CFR 1068.505.

(d) Specific requirements. If you are a motor-vehicle manufacturer and meet all the following criteria and requirements regarding your new nonroad equipment and its engine, the engine is eligible for an exemption under this section:

(1) Your equipment must be covered by a valid certificate of conformity as a motor vehicle issued under 40 CFR part 86.

(2) You must not make any changes to the certified vehicle that we could reasonably expect to increase its exhaust emissions for any pollutant, or its evaporative emissions if it is subject to evaporative-emission standards. For example, if you make any of the following changes, you do not qualify for this exemption:

(i) Change any fuel system parameters from the certified configuration.

(ii) Change, remove, or fail to properly install any other component, element of design, or calibration specified in the vehicle manufacturer's application for certification. This includes aftertreatment devices and all related components.

(iii) Modify or design the engine cooling system so that temperatures or heat rejection rates are outside the original vehicle manufacturer's specified ranges.

(iv) Add more than 500 pounds to the curb weight of the originally certified motor vehicle.

(3) You must show that fewer than 50 percent of the engine family's total sales in the United States are used in nonroad applications. This includes any type of vehicle, without regard to which company completes the manufacturing of the nonroad equipment. Show this as follows:

(i) If you are the original manufacturer of the vehicle, base this showing on your sales information.

(ii) In all other cases, you must get the original manufacturer of the vehicle to confirm this based on their sales information.

(4) The equipment must have the vehicle emission control information and fuel labels we require under 40 CFR 86.007-35.

(5) You must add a permanent supplemental label to the equipment in a position where it will remain clearly visible. In the supplemental label, do the following:

(i) Include the heading: “NONROAD ENGINE EMISSION CONTROL INFORMATION”.

(ii) Include your full corporate name and trademark. You may instead include the full corporate name and trademark of another company you choose to designate.

(iii) State: “THIS VEHICLE WAS ADAPTED FOR NONROAD USE WITHOUT AFFECTING ITS EMISSION CONTROLS. THE EMISSION-CONTROL SYSTEM DEPENDS ON THE USE OF FUEL MEETING SPECIFICATIONS THAT APPLY FOR MOTOR-VEHICLE APPLICATIONS. OPERATING THE ENGINE ON OTHER FUELS MAY BE A VIOLATION OF FEDERAL LAW.”.

(iv) State the date you finished modifying the vehicle (month and year), if applicable.

(6) The original and supplemental labels must be readily visible in the fully assembled equipment.

(7) Send the Designated Compliance Officer a signed letter by the end of each calendar year (or less often if we tell you) with all the following information:

(i) Identify your full corporate name, address, and telephone number.

(ii) List the equipment models you expect to produce under this exemption in the coming year and describe your basis for meeting the sales restrictions of paragraph (d)(3) of this section.

(iii) State: “We produced each listed engine or equipment model for nonroad application without making any changes that could increase its certified emission levels, as described in 40 CFR 1039.610.”

(e) Failure to comply. If your engines, vehicles, or equipment do not meet the criteria listed in paragraph (d) of this section, the engines will be subject to the standards, requirements, and prohibitions of this part 1039, and the certificate issued under 40 CFR part 86 will not be deemed to also be a certificate issued under this part 1039. Introducing these engines into commerce without a valid exemption or certificate of conformity under this part violates the prohibitions in 40 CFR 1068.101(a)(1).

(f) Data submission. We may require you to send us emission test data on any applicable nonroad duty cycles.

(g) Participation in averaging, banking and trading. Vehicles adapted for nonroad use under this section may not generate or use emission credits under this part 1039. These vehicles may generate credits under the ABT provisions in 40 CFR part 86. These vehicles must be included in the calculation of the applicable fleet average in 40 CFR part 86.

In § 1039.115(e), we generally require that engines meet emission standards for any adjustment within the full range of any adjustable parameters. For engines that use noncommercial fuels significantly different than the specified test fuel of the same type, you may ask to use the parameter-adjustment provisions of this section instead of those in § 1039.115(e). Engines certified under this section must be in a separate engine family.

(a) If we approve your request, the following provisions apply:

(1) You must certify the engine using the test fuel specified in § 1039.501.

(2) You may produce the engine without limits or stops that keep the engine adjusted within the certified range.

(3) You must specify in-use adjustments different than the adjustable settings appropriate for the specified test fuel, consistent with the provisions of paragraph (b)(1) of this section.

(b) To produce engines under this section, you must do the following:

(1) Specify in-use adjustments needed so the engine's level of emission control for each regulated pollutant is equivalent to that from the certified configuration.

(2) Add the following information to the emission control information label specified in § 1039.135:

(i) Include instructions describing how to adjust the engine to operate in a way that maintains the effectiveness of the emission-control system.

(ii) State: “THIS ENGINE IS CERTIFIED TO OPERATE IN APPLICATIONS USING NONCOMMERCIAL FUEL. MALADJUSTMENT OF THE ENGINE IS A VIOLATION OF FEDERAL LAW SUBJECT TO CIVIL PENALTY.”.

(3) Keep records to document the destinations and quantities of engines produced under this section.

§ 1039.620What are the provisions for exempting engines used solely for competition?

The provisions of this section apply for new engines built on or after January 1, 2006.

(a) Equipment manufacturers may use uncertified engines if the vehicles or equipment in which they are installed will be used solely for competition.

(b) The definition of nonroad engine in 40 CFR 1068.30 excludes engines used solely for competition. These engines are not required to comply with this part 1039 or 40 CFR part 89, but 40 CFR 1068.101 prohibits the use of competition engines for noncompetition purposes.

(c) We consider a vehicle or piece of equipment to be one that will be used solely for competition if it has features that are not easily removed that would make its use other than in competition unsafe, impractical, or highly unlikely.

(d) As an engine manufacturer, your engine is exempt without our prior approval if you have a written request for an exempted engine from the equipment manufacturer showing the basis for believing that the equipment will be used solely for competition. You must permanently label engines exempted under this section to clearly indicate that they are to be used solely for competition. Failure to properly label an engine will void the exemption.

(e) We may discontinue an exemption under this section if we find that engines are not used solely for competition.

§ 1039.625What requirements apply under the program for equipment-manufacturer flexibility?

The provisions of this section allow equipment manufacturers to produce equipment with engines that are subject to less stringent emission standards after the Tier 4 emission standards begin to apply. To be eligible to use these provisions, you must follow all the instructions in this section. See 40 CFR 89.102(d) and (e) for provisions that apply to equipment produced while Tier 1, Tier 2, or Tier 3 standards apply. See § 1039.626 for requirements that apply specifically to companies that manufacture equipment outside the United States and to companies that import such equipment without manufacturing it. Engines and equipment you produce under this section are exempt from the prohibitions in 40 CFR 1068.101(a)(1), subject to the provisions of this section.

(a) General. If you are an equipment manufacturer, you may introduce into commerce in the United States limited numbers of nonroad equipment with engines exempted under this section. You may use the exemptions in this section only if you have primary responsibility for designing and manufacturing equipment and your manufacturing procedures include installing some engines in this equipment. Consider all U.S.-directed equipment sales in showing that you meet the requirements of this section, including those from any parent or subsidiary companies and those from any other companies you license to produce equipment for you. If you produce a type of equipment that has more than one engine, count each engine separately. These provisions are available over the following periods:

(1) These provisions are available for the years shown in the following table, except as provided in paragraph (a)(2) of this section:

(2) If you do not use any allowances in a power category before the earliest dates shown in the following table, you may delay the start of the seven-year period for using allowances under this section as follows:

(b) Allowances. You may choose one of the following options for each power category to produce equipment with exempted engines under this section, except as allowed under § 1039.627:

(1) Percent-of-production allowances. You may produce a certain number of units with exempted engines calculated using a percentage of your total sales within a power category relative to your total U.S.-directed production volume. The sum of these percentages within a power category during the seven-year period specified in paragraph (a) of this section may not exceed 80 percent, except as allowed under paragraph (b)(2) or (m) of this section.

(2) Small-volume allowances. You may determine an alternate allowance for a specific number of exempted engines under this section using one of the following approaches for your U.S.-directed production volumes:

(i) You may produce up to 700 units with exempted engines within a power category during the seven-year period specified in paragraph (a) of this section, with no more than 200 units in any single year within a power category, except as provided in paragraph (m) of this section. Engines within a power category that are exempted under this section must be from a single engine family within a given year.

(ii) For engines below 130 kW, you may produce up to 525 units with exempted engines within a power category during the seven-year period specified in paragraph (a) of this section, with no more than 150 units in any single year within a power category, except as provided in paragraph (m) of this section. For engines at or above 130 kW, you may produce up to 350 units with exempted engines within a power category during the seven-year period, with no more than 100 units in any single year within a power category. Exemptions under this paragraph (b)(2)(ii) may apply to engines from multiple engine families in a given year.

(c) Percentage calculation. Calculate for each calendar year the percentage of equipment with exempted engines from your total U.S.-directed production within a power category if you need to show that you meet the percent-of-production allowances in paragraph (b)(1) of this section.

(d) Inclusion of engines not subject to Tier 4 standards. The following provisions apply to engines that are not subject to Tier 4 standards:

(1) If you use the provisions of 40 CFR 1068.105(a) to use up your inventories of engines not certified to new emission standards, do not include these units in your count of equipment with exempted engines under paragraph (b) of this section. However, you may include these units in your count of total equipment you produce for the given year for the percentage calculation in paragraph (b)(1) of this section.

(2) If you install engines that are exempted from the Tier 4 standards for any reason, other than for equipment-manufacturer allowances under this section, do not include these units in your count of exempted engines under paragraph (b) of this section. However, you may include these units in your count of total equipment you produce for the given year for the percentage calculation in paragraph (b)(1) of this section. For example, if we grant a hardship exemption for the engine manufacturer, you may count these as compliant engines under this section. This paragraph (d)(2) applies only if the engine has a permanent label describing why it is exempted from the Tier 4 standards.

(3) Do not include equipment using model year 2008 or 2009 engines certified under the provisions of § 1039.101(c) in your count of equipment using exempted engines. However, you may include these units in your count of total equipment you produce for the given year for the percentage calculation in paragraph (b)(1) of this section.

(4) You may start using the allowances under this section for engines that are not yet subject to Tier 4 standards, as long as the seven-year period for using allowances under the Tier 2 or Tier 3 program has expired (see 40 CFR 89.102(d)). Table 3 of this section shows the years for which this applies. To use these early allowances, you must use engines that meet the emission standards described in paragraph (e) of this section. You must also count these units or calculate these percentages as described in paragraph (c) of this section and apply them toward the total number or percentage of equipment with exempted engines we allow for the Tier 4 standards as described in paragraph (b) of this section. The maximum number of cumulative early allowances under this paragraph (d)(4) is 10 percent under the percent-of-production allowance or 100 units under the small-volume allowance. For example, if you produce 5 percent of your equipment with engines between 130 and 560 kW that use allowances under this paragraph (d)(4) in 2009, you may use up to an additional 5 percent of your allowances in 2010. If you use allowances for 5 percent of your equipment in both 2009 and 2010, your 80 percent allowance for 2011-2017 in the 130-560 kW power category decreases to 70 percent. Manufacturers using allowances under this paragraph (d)(4) must comply with the notification and reporting requirements specified in paragraph (g) of this section.

(e) Standards. If you produce equipment with exempted engines under this section, the engines must meet emission standards specified in this paragraph (e). Note that we consider engines to be meeting emission standards even if they are certified with a family emission limit that is higher than the emission standard that would otherwise apply.

(1) If you are using the provisions of paragraph (d)(4) of this section, engines must meet the applicable Tier 1 or Tier 2 emission standards described in § 89.112.

(2) If you are using the provisions of paragraph (a)(2) of this section, engines must be certified under this part 1039 as follows:

(3) In all other cases, engines at or above 56 kW and at or below 560 kW must meet the appropriate Tier 3 standards described in 40 CFR 89.112. Engines below 56 kW and engines above 560 kW must meet the appropriate Tier 2 standards described in 40 CFR 89.112.

(f) Equipment labeling. You must add a permanent label, written legibly in English, to the engine or another readily visible part of each piece of equipment you produce with exempted engines under this section. This label, which supplements the engine manufacturer's emission control information label, must include at least the following items:

(1) The label heading “EMISSION CONTROL INFORMATION”.

(2) Your corporate name and trademark.

(3) The calendar year in which the equipment is manufactured.

(4) An e-mail address and phone number to contact for further information, or a Web site that includes this contact information.

(5) The following statement:

THIS EQUIPMENT [or identify the type of equipment] HAS AN ENGINE THAT MEETS U.S. EPA EMISSION STANDARDS UNDER 40 CFR 1039.625.

(g) Notification and reporting. You must notify us of your intent to use the provisions of this section and send us an annual report to verify that you are not exceeding the allowances, as follows:

(1) Before you use the provisions of this section, send the Designated Compliance Officer a written notice of your intent, including:

(i) Your company's name and address, and your parent company's name and address, if applicable.

(ii) The name, phone number and e-mail address of a person to contact for more information.

(iii) The calendar years in which you expect to use the exemption provisions of this section.

(iv) The name and address of each company you expect to produce engines for the equipment you manufacture under this section.

(v) Your best estimate of the number of units in each power category you will produce under this section and whether you intend to comply under paragraph (b)(1) or (b)(2) of this section.

(vi) The number of units in each power category you have sold in previous calendar years under 40 CFR 89.102(d).

(2) For each year that you use the provisions of this section, send the Designated Compliance Officer a written report by March 31 of the following year. Identify the following things in your report:

(i) The total count of units you sold in the preceding year for each power category, based on actual U.S.-directed production information.

(ii) The percentages of U.S.-directed production that correspond to the number of units in each power category and the cumulative numbers and percentages of units for all the units you have sold under this section for each power category. You may omit the percentage figures if you include in the report a statement that you will not be using the percent-of-production allowances in paragraph (b)(1) of this section.

(iii) The manufacturer of the engine installed in the equipment you produce under this section if this is different than you specified under paragraph (g)(1)(iv) of this section.

(h) Recordkeeping. Keep the following records of all equipment with exempted engines you produce under this section for at least five full years after the final year in which allowances are available for each power category:

(1) The model number, serial number, and the date of manufacture for each engine and piece of equipment.

(2) The maximum power of each engine.

(3) The total number or percentage of equipment with exempted engines, as described in paragraph (b) of this section and all documentation supporting your calculation.

(4) The notifications and reports we require under paragraph (g) of this section.

(i) Enforcement. Producing more exempted engines or equipment than we allow under this section or installing engines that do not meet the emission standards of paragraph (e) of this section violates the prohibitions in 40 CFR 1068.101(a)(1). You must give us the records we require under this section if we ask for them (see 40 CFR 1068.101(a)(2)).

(j) Provisions for engine manufacturers. As an engine manufacturer, you may produce exempted engines as needed under this section. You do not have to request this exemption for your engines, but you must have written assurance from equipment manufacturers that they need a certain number of exempted engines under this section. Send us an annual report of the engines you produce under this section, as described in § 1039.250(a). For engines produced under the provisions of paragraph (a)(2) of this section, you must certify the engines under this part 1039. For all other exempt engines, the engines must meet the emission standards in paragraph (e) of this section and you must meet all the requirements of 40 CFR 1068.265. If you show under 40 CFR 1068.265(c) that the engines are identical in all material respects to engines that you have previously certified to one or more FELs above the standards specified in paragraph (e) of this section, you must supply sufficient credits for these engines. Calculate these credits under subpart H of this part using the previously certified FELs and the alternate standards. You must meet the labeling requirements in 40 CFR 89.110 or § 1039.135, as applicable, with the following exceptions:

(1) Add the following statement instead of the compliance statement in 40 CFR 89.110(b)(10) or § 1039.135(c)(12), as applicable:

THIS ENGINE MEETS U.S. EPA EMISSION STANDARDS UNDER 40 CFR 1039.625. SELLING OR INSTALLING THIS ENGINE FOR ANY PURPOSE OTHER THAN FOR THE EQUIPMENT FLEXIBILITY PROVISIONS OF 40 CFR 1039.625 MAY BE A VIOLATION OF FEDERAL LAW SUBJECT TO CIVIL PENALTY.

(2) You may omit the family emission limits if they are below the emission standards.

(k) Other exemptions. See 40 CFR 1068.255 for exemptions based on hardship for equipment manufacturers and secondary engine manufacturers.

(l) [Reserved]

(m) Additional exemptions for technical or engineering hardship. You may request additional engine allowances under paragraph (b)(1) of this section for 19-560 kW power categories or, if you are a small equipment manufacturer, under paragraph (b)(2) of this section for engines at or above 19 and below 37 kW. However, you may use these extra allowances only for those equipment models for which you, or an affiliated company, do not also produce the engine. After considering the circumstances, we may permit you to introduce into commerce equipment with such engines that do not comply with Tier 4 emission standards, as follows:

(1) We may approve additional exemptions if extreme and unusual circumstances that are clearly outside your control and that could not have been avoided with reasonable discretion have resulted in technical or engineering problems that prevent you from meeting the requirements of this part. You must show that you exercised prudent planning and have taken all reasonable steps to minimize the scope of your request for additional allowances.

(2) To apply for exemptions under this paragraph (m), send the Designated Compliance Officer a written request as soon as possible before you are in violation. In your request, include the following information:

(i) Describe your process for designing equipment.

(ii) Describe how you normally work cooperatively or concurrently with your engine supplier to design products.

(iii) Describe the engineering or technical problems causing you to request the exemption and explain why you have not been able to solve them. Describe the extreme and unusual circumstances that led to these problems and explain how they were unavoidable.

(iv) Describe any information or products you received from your engine supplier related to equipment design—such as written specifications, performance data, or prototype engines—and when you received it.

(v) Compare the design processes of the equipment model for which you need additional exemptions and that for other models for which you do not need additional exemptions. Explain the technical differences that justify your request.

(vi) Describe your efforts to find and use other compliant engines, or otherwise explain why none is available.

(vii) Describe the steps you have taken to minimize the scope of your request.

(viii) Include other relevant information. You must give us other relevant information if we ask for it.

(ix) Estimate the increased percent of production you need for each equipment model covered by your request, as described in paragraph (m)(3) of this section. Estimate the increased number of allowances you need for each equipment model covered by your request, as described in paragraph (m)(4) of this section.

(3) We may approve your request to increase the allowances under paragraph (b)(1) of this section, subject to the following limitations:

(i) The additional allowances will not exceed 70 percent for each power category.

(ii) You must use up the allowances under paragraph (b)(1) of this section before using any additional allowance under this paragraph (m).

(iii) Any allowances we approve under this paragraph (m)(3) expire 24 months after the provisions of this section start for a given power category, as described in paragraph (a) of this section. You may use these allowances only for the specific equipment models covered by your request.

(4) We may approve your request to increase the allowances for the 19-56 kW power category under paragraph (b)(2) of this section, subject to the following limitations:

(i) You are eligible for additional allowances under this paragraph (m)(4) only if you are a small equipment manufacturer and you do not use the provisions of paragraph (m)(3) of this section to obtain additional allowances for the 19-56 kW power category.

(ii) You must use up all the available allowances for the 19-56 kW power category under paragraph (b)(2) of this section in a given year before using any additional allowances under this paragraph (m)(4).

(iii) Base your request only on equipment you produce with engines at or above 19 kW and below 37 kW. You may use any additional allowances only for equipment you produce with engines at or above 19 kW and below 37 kW.

(iv) The total allowances under either paragraph (b)(2)(i) or (ii) of this section for the 19-56 kW power category will not exceed 1,100 units.

(v) Any allowances we approve under this paragraph (m)(4) expire 36 months after the provisions of this section start for this power category, as described in paragraph (a) of this section. These additional allowances are not subject to the annual limits specified in paragraph (b)(2) of this section. You may use these allowances only for the specific equipment models covered by your request.

(5) For purposes of this paragraph (m), small equipment manufacturer means a small-business equipment manufacturer that had annual U.S.-directed production volume of equipment using nonroad diesel engines between 19 and 56 kW of no more than 3,000 units in 2002 and all earlier calendar years, and has 750 or fewer employees (500 or fewer employees for nonroad equipment manufacturers that produce no construction equipment or industrial trucks). For manufacturers owned by a parent company, the production limit applies to the production of the parent company and all its subsidiaries and the employee limit applies to the total number of employees of the parent company and all its subsidiaries.

This section describes requirements that apply to equipment manufacturers using the provisions of § 1039.625 for equipment produced outside the United States. Note that § 1039.625 limits these provisions to equipment manufacturers that install some engines and have primary responsibility for designing and manufacturing equipment. Companies that import equipment into the United States without meeting these criteria are not eligible for these allowances. Such importers may import equipment with exempted engines only as described in paragraph (b) of this section.

(a) As a foreign equipment manufacturer, you or someone else may import equipment with exempted engines under this section if you comply with the provisions in § 1039.625 and commit to the following:

(1) Give any EPA inspector or auditor complete and immediate access to inspect and audit, as follows:

(i) Inspections and audits may be announced or unannounced.

(ii) Inspections and audits may be by EPA employees or EPA contractors.

(iii) You must provide access to any location where—

(A) Any nonroad engine, equipment, or vehicle is produced or stored.

(B) Documents related to manufacturer operations are kept.

(C) Equipment, engines, or vehicles are tested or stored for testing.

(iv) You must provide any documents requested by an EPA inspector or auditor that are related to matters covered by the inspections or audit.

(v) EPA inspections and audits may include review and copying of any documents related to demonstrating compliance with the exemptions in § 1039.625.

(vi) EPA inspections and audits may include inspection and evaluation of complete or incomplete equipment, engines, or vehicles, and interviewing employees.

(vii) You must make any of your employees available for interview by the EPA inspector or auditor, on request, within a reasonable time period.

(viii) You must provide English language translations of any documents to an EPA inspector or auditor, on request, within 10 working days.

(ix) You must provide English-language interpreters to accompany EPA inspectors and auditors, on request.

(2) Name an agent for service located in the United States. Service on this agent constitutes service on you or any of your officers or employees for any action by EPA or otherwise by the United States related to the requirements of this part.

(3) The forum for any civil or criminal enforcement action related to the provisions of this section for violations of the Clean Air Act or regulations promulgated thereunder shall be governed by the Clean Air Act.

(4) The substantive and procedural laws of the United States shall apply to any civil or criminal enforcement action against you or any of your officers or employees related to the provisions of this section.

(5) Provide the notification required by § 1039.625(g). Include in the notice of intent in § 1039.625(g)(1) a commitment to comply with the requirements and obligations of § 1039.625 and this section. This commitment must be signed by the owner or president.

(6) You, your agents, officers, and employees must not seek to detain or to impose civil or criminal remedies against EPA inspectors or auditors, whether EPA employees or EPA contractors, for actions performed within the scope of EPA employment related to the provisions of this section.

(7) By submitting notification of your intent to use the provisions of § 1039.625, producing and exporting for resale to the United States nonroad equipment under this section, or taking other actions to comply with the requirements of this part, you, your agents, officers, and employees, without exception, become subject to the full operation of the administrative and judicial enforcement powers and provisions of the United States as described in 28 U.S.C. 1605(a)(2), without limitation based on sovereign immunity, for conduct that violates the requirements applicable to you under this part 1039—including such conduct that violates 18 U.S.C. 1001, 42 U.S.C. 7413(c)(2), or other applicable provisions of the Clean Air Act'with respect to actions instituted against you and your agents, officers, and employees in any court or other tribunal in the United States.

(8) Any report or other document you submit to us must be in the English language, or include a complete translation in English.

(9) You must post a bond to cover any potential enforcement actions under the Clean Air Act before you or anyone else imports your equipment under this section, as follows:

(i) The value of the bond is based on the per-engine bond values shown in Table 1 of this section and on the highest number of engines in each power category you produce in any single calendar year under the provisions of § 1039.625. For example, if you have projected U.S.-directed production volumes of 100 exempt engines in the 19-56 kW power category and 300 exempt engines in the 56-130 kW power category in 2013, the appropriate bond amount is $180,000. If your estimated or actual engine imports increase beyond the level appropriate for your current bond payment, you must post additional bond to reflect the increased sales within 90 days after you change your estimate or determine the actual sales. You may not decrease your bond.

(ii) You may meet the bond requirements of this section with any of the following methods:

(A) Get a bond from a third-party surety that is cited in the U.S. Department of Treasury Circular 570, “Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies.” Maintain this bond for five years after the applicable allowance period expires, or five years after you use up all the available allowances under § 1039.625, whichever comes first.

(B) Get us to approve a waiver from the bonding requirement if you can show that you meet the asset thresholds described in 40 CFR 1054.690.

(iii) If you forfeit some or all of your bond in an enforcement action, you must post any appropriate bond for continuing importation within 90 days after you forfeit the bond amount.

(iv) You will forfeit the proceeds of the bond posted under this section if you need to satisfy any U.S. administrative settlement agreement, administrative final order or judicial judgment against you arising from your violation of this chapter, or violation of 18 U.S.C. 1001, 42 U.S.C. 7413(c)(2), or other applicable provisions of the Clean Air Act.

(b) The provisions of this paragraph (b) apply to importers that do not install engines into equipment and do not have primary responsibility for designing and manufacturing equipment. Such importers may import equipment with engines exempted under § 1039.625 only if each engine is exempted under an allowance provided to an equipment manufacturer meeting the requirements of § 1039.625 and this section. You must notify us of your intent to use the provisions of this section and send us an annual report, as follows:

(1) Before you use the provisions of this section, send the Designated Compliance Officer a written notice of your intent, including:

(i) Your company's name and address, and your parent company's name and address, if applicable.

(ii) The name and address of the companies that produce the equipment and engines you will be importing under this section.

(iii) Your best estimate of the number of units in each power category you will import under this section in the upcoming calendar year, broken down by equipment manufacturer and power category.

(iv) The number of units in each power category you have imported in previous calendar years under 40 CFR 89.102(d).

(2) For each year that you use the provisions of this section, send the Designated Compliance Officer a written report by March 31 of the following year. Include in your report the total number of engines you imported under this section in the preceding calendar year, broken down by engine manufacturer and by equipment manufacturer.

[69 FR 39213, June 29, 2004, as amended at 73 FR 59192, Oct. 8, 2008]§ 1039.627What are the incentives for equipment manufacturers to use cleaner engines?

This section allows equipment manufacturers to generate additional allowances under the provisions of § 1039.625 by producing equipment using engines at or above 19 kW certified to specified levels earlier than otherwise required.

(a) For early-compliant engines to generate offsets for use under this section, the following general provisions apply:

(1) The engine manufacturer must comply with the provisions of § 1039.104(a)(1) for the offset-generating engines.

(2) Engines you install in your equipment after December 31 of the years specified in § 1039.104(a)(1) do not generate allowances under this section, even if the engine manufacturer generated offsets for that engine under § 1039.104(a).

(3) Offset-generating engines must be certified to the following standards under this part 1039:

If the engine's maximum power is . . .And you install . . .Certified early to the . . .You may reduce the number of engines in the same power category that are required to meet the . . .In later model

years by . . .

(i) kW ≥ 19One engineEmissions standards in § 1039.101Standards in Tables 2 through 7 of § 1039.102 or in § 1039.101One engine.(ii) 56 ≤ kW < 130Two enginesNOX standards in § 1039.102(e)(1), and NMHC standard of 0.19 g/kW-hr, a PM standard of 0.02 g/kW-hr, and a CO standard of 5.0 g/kW-hrStandards in Tables 2 through 7 of § 1039.102 or in § 1039.101One engine.(iii) 130 ≤ kW < 560Two enginesNOX standards in § 1039.102(e)(2), an NMHC standard of 0.19 g/kW-hr, a PM standard of 0.02 g/kW-hr, and a CO standard of 3.5 g/kW-hrStandards in Tables 2 through 7 of § 1039.102 or in § 1039.101One engine.

(b) Using engine offsets. (1) You may use engine offsets generated under paragraph (a) of this section to generate additional allowances under § 1039.625, as follows:

(i) For each engine offset, you may increase the number of available allowances under § 1039.625(b) for that power category by one engine for the years indicated.

(ii) For engines in 56-560 kW power categories, you may transfer engine offsets across power categories within this power range. Calculate the number of additional allowances by scaling the number of generated engine offsets according to the ratio of engine power for offset and allowance engines. Make this calculation for all your offset engines for which you will transfer offsets under this paragraph (b)(1)(ii), then round the result to determine the total number of available power-weighted allowances. For example, if you generate engine offsets for 75 500-kW engines, you may generate up to 37,500 kW-engines of power-weighted allowances. You may apply this to 375 100-kW engines or any other combination that totals 37,500 kW-engines.

(2) You may decline to use the offsets. If you decline, the engine manufacturer may use the provisions of § 1039.104(a)(1).

(c) Limitation on offsets for engines above 560 kW. For engines above 560 kW, you must track how many engines you install in generator sets and how many you install in other applications under the provisions of this section. Offsets from generator-set engines may be used only for generator-set engines. Offsets from engines for other applications may be used only for other applications besides generator sets.

(d) Reporting. When you submit your first annual report under § 1039.625(g), include the following additional information related to the engines you use to generate offsets under this section:

(1) The name of each engine family involved.

(2) The number of engines from each power category.

(3) The maximum engine power of each engine.

(4) For engines above 560 kW, whether you use engines certified to the standards for generator-set engines.

(e) In-use fuel. If the engine manufacturer certifies using ultra low-sulfur diesel fuel, you must take steps to ensure that the in-use engines in the family will use diesel fuel with a sulfur concentration no greater than 15 ppm. For example, selling equipment only into applications where the operator commits to a central-fueling facility with ultra low-sulfur diesel fuel throughout its lifetime would meet this requirement.

If you qualify for the economic hardship provisions specified in 40 CFR 1068.255, we may approve your hardship application subject to the following additional conditions:

(a) You must show that you have used up the allowances to produce equipment with exempted engines under § 1039.625.

(b) You may produce equipment under this section for up to 12 months total (or 24 months total for small-volume manufacturers).

§ 1039.635What are the hardship provisions for engine manufacturers?

If you qualify for the hardship provisions specified in 40 CFR 1068.245, we may approve a period of delayed compliance for up to one model year total (or two model years total for small-volume manufacturers). If you qualify for the hardship provisions specified in 40 CFR 1068.250 for small-volume manufacturers, we may approve a period of delayed compliance for up to two model years total.

§ 1039.640What special provisions apply to branded engines?

The following provisions apply if you identify the name and trademark of another company instead of your own on your emission control information label, as provided by § 1039.135(c)(2):

(a) You must have a contractual agreement with the other company that obligates that company to take the following steps:

(1) Meet the emission warranty requirements that apply under § 1039.120. This may involve a separate agreement involving reimbursement of warranty-related expenses.

(2) Report all warranty-related information to the certificate holder.

(b) In your application for certification, identify the company whose trademark you will use and describe the arrangements you have made to meet your requirements under this section.

(c) You remain responsible for meeting all the requirements of this chapter, including warranty and defect-reporting provisions.

§ 1039.645What special provisions apply to engines used for transportation refrigeration units?

Manufacturers may choose to use the provisions of this section for engines used in transportation refrigeration units (TRUs). The operating restrictions and characteristics in paragraph (f) of this section define engines that are not used in TRUs. All provisions of this part apply for TRU engines, except as specified in this section.

(a) You may certify engines under this section with the following special provisions:

(1) The engines are not subject to the transient emission standards of subpart B of this part.

(2) The steady-state emission standards in subpart B of this part apply for emissions measured over the steady-state test cycle described in paragraph (b) of this section instead of the otherwise applicable duty cycle described in § 1039.505.

(b) Measure steady-state emissions using the procedures specified in § 1039.505, except for the duty cycles, as follows:

1Maximum test speed750.252Maximum test speed500.253Intermediate test speed750.254Intermediate test speed500.251 Speed terms are defined in 40 CFR part 1065.2 The percent torque is relative to the maximum torque at the given engine speed.

(2) The following duty cycle applies for ramped-modal testing:

Table 2 of § 1039.645—Ramped-Modal Cycle for TRU EnginesRMC

mode

Time in mode (seconds)Engine speed 1Torque

(percent) 2,3

1a Steady-state290Intermediate Speed75.1b Transition20Intermediate SpeedLinear Transition.2a Steady-state280Intermediate Speed50.2b Transition20Linear TransitionLinear Transition.3a Steady-state280Maximum Test Speed75.3b Transition20Maximum Test SpeedLinear Transition.4 Steady-state290Maximum Test Speed501 Speed terms are defined in 40 CFR part 1065.2 The percent torque is relative to the maximum torque at the commanded engine speed.3 Advance from one mode to the next within a 20-second transition phase. During the transition phase, command a linear progression from the torque setting of the current mode to the torque setting of the next mode, and simultaneously command a similar linear progression for engine speed if there is a change in speed setting.

(c) Engines certified under this section must be certified in a separate engine family that contains only TRU engines.

(d) You must do the following for each engine certified under this section:

(1) State on the emission control information label: “THIS ENGINE IS CERTIFIED TO OPERATE ONLY IN TRANSPORTATION REFRIGERATION UNITS. INSTALLING OR USING THIS ENGINE IN ANY OTHER APPLICATION MAY BE A VIOLATION OF FEDERAL LAW SUBJECT TO CIVIL PENALTY.”.

(2) State in the emission-related installation instructions all steps necessary to ensure that the engine will operate only in the modes covered by the test cycle described in this section.

(3) Keep records to document the destinations and quantities of engines produced under this section.

(e) All engines certified under this section must comply with NTE standards, as described in § 1039.101 or § 1039.102 for the applicable model year, except that the NTE standards are not limited with respect to operating speeds and loads. In your application for certification, certify that all the engines in the engine family comply with the not-to-exceed emission standards for all normal operation and use. The deficiency provisions of § 1039.104(d) do not apply to these engines. This paragraph (e) applies whether or not the engine would otherwise be subject to NTE standards.

(f) An engine is not considered to be used in a TRU if any of the following is true:

(1) The engine is installed in any equipment other than refrigeration units for railcars, truck trailers, or other freight vehicles.

(2) The engine operates in any mode not covered by the test cycle described in this section, except as follows:

(i) The engine may operate briefly at idle. Note, however, that TRU engines must meet NTE emission standards under any type of operation, including idle, as described in paragraph (e) of this section.

(ii) The engine may have a minimal amount of transitional operation between two allowable modes. As an example, a thirty-second transition period would clearly not be considered minimal.

(iii) The engine as installed may experience up to a 2-percent decrease in load at a given setpoint over any 10-minute period, and up to a 15-percent decrease in load at a given setpoint over any 60-minute period.

(3) The engine is sold in a configuration that allows the engine to operate in any mode not covered by the test cycle described in this section. For example, this section does not apply to an engine sold without a governor limiting operation only to those modes covered by the test cycle described in this section.

(4) The engine is subject to Tier 3 or earlier standards, or phase-out Tier 4 standards.

[69 FR 39213, June 29, 2004, as amended at 73 FR 37241, June 30, 2008]§ 1039.650[Reserved]§ 1039.655What special provisions apply to engines sold in Guam, American Samoa, or the Commonwealth of the Northern Mariana Islands?

(a) The prohibitions in § 1068.101(a)(1) do not apply to an engine if the following conditions are met:

(1) The engine is intended for use and will be used in Guam, American Samoa, or the Commonwealth of the Northern Mariana Islands.

(b) If you introduce an engine into commerce in the United States under this section, you must meet the labeling requirements in 40 CFR 89.110, but add the following statement instead of the compliance statement in 40 CFR 89.110(b)(10):

THIS ENGINE DOES NOT COMPLY WITH U.S. EPA TIER 4 EMISSION REQUIREMENTS. IMPORTING THIS ENGINE INTO THE UNITED STATES OR ANY TERRITORY OF THE UNITED STATES EXCEPT GUAM, AMERICAN SAMOA, OR THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS MAY BE A VIOLATION OF FEDERAL LAW SUBJECT TO CIVIL PENALTY.

(c) Introducing into commerce an engine exempted under this section in any state or territory of the United States other than Guam, American Samoa, or the Commonwealth of the Northern Mariana Islands, throughout its lifetime, violates the prohibitions in 40 CFR 1068.101(a)(1), unless it is exempt under a different provision.

Under § 1039.801, certain engines are considered to be new engines when they are imported into the United States, even if they have previously been used outside the country. Independent Commercial Importers may use the provisions of 40 CFR part 89, subpart G, and 40 CFR 89.906(b) to receive a certificate of conformity for engines meeting all the requirements of this part 1039.

(a) You may average, bank, and trade (ABT) emission credits for purposes of certification as described in this subpart to show compliance with the standards of this part. Participation in this program is voluntary.

(b) Section 1039.740 restricts the use of emission credits to certain averaging sets.

(c) The definitions of Subpart I of this part apply to this subpart. The following definitions also apply:

(1) Actual emission credits means emission credits you have generated that we have verified by reviewing your final report.

(2) Averaging set means a set of engines in which emission credits may be exchanged only with other engines in the same averaging set.

(3) Broker means any entity that facilitates a trade of emission credits between a buyer and seller.

(4) Buyer means the entity that receives emission credits as a result of a trade.

(5) Reserved emission credits means emission credits you have generated that we have not yet verified by reviewing your final report.

(6) Seller means the entity that provides emission credits during a trade.

(7) Standard means the emission standard that applies under subpart B of this part for engines not participating in the ABT program of this subpart.

(8) Trade means to exchange emission credits, either as a buyer or seller.

(d) You may not use emission credits generated under this subpart to offset any emissions that exceed an FEL or standard. This applies for all testing, including certification testing, in-use testing, selective enforcement audits, and other production-line testing. However, if emissions from an engine exceed an FEL or standard (for example, during a selective enforcement audit), you may use emission credits to recertify the engine family with a higher FEL that applies only to future production.

(e) Engine families that use emission credits for one or more pollutants may not generate positive emission credits for another pollutant.

(f) Emission credits may be used in the model year they are generated or in future model years. Emission credits may not be used for past model years.

(g) You may increase or decrease an FEL during the model year by amending your application for certification under § 1039.225. The new FEL may apply only to engines you have not already introduced into commerce. Each engine's emission control information label must include the applicable FELs.

§ 1039.705How do I generate and calculate emission credits?

The provisions of this section apply separately for calculating emission credits for NOX, NOX+NMHC, or PM.

(a) [Reserved]

(b) For each participating family, calculate positive or negative emission credits relative to the otherwise applicable emission standard. Calculate positive emission credits for a family that has an FEL below the standard. Calculate negative emission credits for a family that has an FEL above the standard. Sum your positive and negative credits for the model year before rounding. Round the sum of emission credits to the nearest kilogram (kg), using consistent units throughout the following equation:

Emission credits (kg) = (Std − FEL) × (Volume) × (AvgPR) × (UL) × (10−3)Where:Std = the emission standard, in grams per kilowatt-hour, that applies under subpart B of this part for engines not participating in the ABT program of this subpart (the “otherwise applicable standard”).FEL = the family emission limit for the engine family, in grams per kilowatt-hour.Volume = the number of engines eligible to participate in the averaging, banking, and trading program within the given engine family during the model year, as described in paragraph (c) of this section.AvgPR = the average maximum engine power of all the engine configurations within an engine family, calculated on a sales-weighted basis, in kilowatts.UL = the useful life for the given engine family, in hours.

(c) In your application for certification, base your showing of compliance on projected production volumes for engines whose point of first retail sale is in the United States. As described in § 1039.730, compliance with the requirements of this subpart is determined at the end of the model year based on actual production volumes for engines whose point of first retail sale is in the United States. Do not include any of the following engines to calculate emission credits:

(1) Engines exempted under subpart G of this part or under 40 CFR part 1068.

(2) Exported engines.

(3) Engines not subject to the requirements of this part, such as those excluded under § 1039.5.

(4) Engines in families that include only stationary engines, except for engines in families certified to standards that are identical to standards applicable under this part 1039 to nonroad engines of the same type for the same model year.

(5) Any other engines, where we indicate elsewhere in this part 1039 that they are not to be included in the calculations of this subpart.

(a) Averaging is the exchange of emission credits among your engine families. You may average emission credits only within the same averaging set.

(b) You may certify one or more engine families to an FEL above the applicable standard, subject to the FEL caps and other provisions in subpart B of this part, if you show in your application for certification that your projected balance of all emission-credit transactions in that model year is greater than or equal to zero.

(c) If you certify an engine family to an FEL that exceeds the otherwise applicable standard, you must obtain enough emission credits to offset the engine family's deficit by the due date for the final report required in § 1039.730. The emission credits used to address the deficit may come from your other engine families that generate emission credits in the same model year, from emission credits you have banked, or from emission credits you obtain through trading.

§ 1039.715How do I bank emission credits?

(a) Banking is the retention of emission credits by the manufacturer generating the emission credits for use in future model years for averaging or trading.

(b) You may designate any emission credits you plan to bank in the reports you submit under § 1039.730 as reserved credits. During the model year and before the due date for the final report, you may designate your reserved emission credits for averaging or trading.

(c) Reserved credits become actual emission credits when you submit your final report. However, we may revoke these emission credits if we are unable to verify them after reviewing your reports or auditing your records.

(a) Trading is the exchange of emission credits between manufacturers. You may use traded emission credits for averaging, banking, or further trading transactions. Traded emission credits may be used only within the averaging set in which they were generated.

(b) You may trade actual emission credits as described in this subpart. You may also trade reserved emission credits, but we may revoke these emission credits based on our review of your records or reports or those of the company with which you traded emission credits. You may trade banked credits within an averaging set to any certifying manufacturer.

(c) If a negative emission credit balance results from a transaction, both the buyer and seller are liable, except in cases we deem to involve fraud. See § 1039.255(e) for cases involving fraud. We may void the certificates of all engine families participating in a trade that results in a manufacturer having a negative balance of emission credits. See § 1039.745.

[69 FR 39213, June 29, 2004, as amended at 75 FR 22992, Apr. 30, 2010]§ 1039.725What must I include in my application for certification?

(a) You must declare in your application for certification your intent to use the provisions of this subpart for each engine family that will be certified using the ABT program. You must also declare the FELs you select for the engine family for each pollutant for which you are using the ABT program. Your FELs must comply with the specifications of subpart B of this part, including the FEL caps. FELs must be expressed to the same number of decimal places as the applicable standards.

(b) Include the following in your application for certification:

(1) A statement that, to the best of your belief, you will not have a negative balance of emission credits for any averaging set when all emission credits are calculated at the end of the year.

(2) Detailed calculations of projected emission credits (positive or negative) based on projected production volumes. We may require you to include similar calculations from your other engine families to demonstrate that you will be able to avoid a negative credit balance for the model year. If you project negative emission credits for a family, state the source of positive emission credits you expect to use to offset the negative emission credits.

(a) If any of your engine families are certified using the ABT provisions of this subpart, you must send an end-of-year report within 90 days after the end of the model year and a final report within 270 days after the end of the model year. We may waive the requirement to send the end-of year report, as long as you send the final report on time.

(b) Your end-of-year and final reports must include the following information for each engine family participating in the ABT program:

(1) Engine-family designation.

(2) The emission standards that would otherwise apply to the engine family.

(3) The FEL for each pollutant. If you change the FEL after the start of production, identify the date that you started using the new FEL and/or give the engine identification number for the first engine covered by the new FEL. In this case, identify each applicable FEL and calculate the positive or negative emission credits as specified in § 1039.225.

(4) The projected and actual U.S.-directed production volumes for the model year. If you changed an FEL during the model year, identify the actual production volume associated with each FEL.

(5) Maximum engine power for each engine configuration, and the average engine power weighted by U.S.-directed production volumes for the engine family.

(6) Useful life.

(7) Calculated positive or negative emission credits for the whole engine family. Identify any emission credits that you traded, as described in paragraph (d)(1) of this section.

(c) Your end-of-year and final reports must include the following additional information:

(1) Show that your net balance of emission credits from all your participating engine families in each averaging set in the applicable model year is not negative.

(2) State whether you will reserve any emission credits for banking.

(3) State that the report's contents are accurate.

(d) If you trade emission credits, you must send us a report within 90 days after the transaction, as follows:

(1) As the seller, you must include the following information in your report:

(i) The corporate names of the buyer and any brokers.

(ii) A copy of any contracts related to the trade.

(iii) The engine families that generated emission credits for the trade, including the number of emission credits from each family.

(2) As the buyer, you must include the following information in your report:

(i) The corporate names of the seller and any brokers.

(ii) A copy of any contracts related to the trade.

(iii) How you intend to use the emission credits, including the number of emission credits you intend to apply to each engine family (if known).

(e) Send your reports electronically to the Designated Compliance Officer using an approved information format. If you want to use a different format, send us a written request with justification for a waiver.

(f) Correct errors in your end-of-year report or final report as follows:

(1) You may correct any errors in your end-of-year report when you prepare the final report, as long as you send us the final report by the time it is due.

(2) If you or we determine within 270 days after the end of the model year that errors mistakenly decreased your balance of emission credits, you may correct the errors and recalculate the balance of emission credits. You may not make these corrections for errors that are determined more than 270 days after the end of the model year. If you report a negative balance of emission credits, we may disallow corrections under this paragraph (f)(2).

(3) If you or we determine anytime that errors mistakenly increased your balance of emission credits, you must correct the errors and recalculate the balance of emission credits.

(a) You must organize and maintain your records as described in this section. We may review your records at any time.

(b) Keep the records required by this section for at least eight years after the due date for the end-of-year report. You may not use emission credits for any engines if you do not keep all the records required under this section. You must therefore keep these records to continue to bank valid credits. Store these records in any format and on any media, as long as you can promptly send us organized, written records in English if we ask for them. You must keep these records readily available. We may review them at any time.

(c) Keep a copy of the reports we require in § 1039.725 and § 1039.730.

(d) Keep records of the engine identification number for each engine you produce that generates or uses emission credits under the ABT program. You may identify these numbers as a range. If you change the FEL after the start of production, identify the date you started using each FEL and the range of engine identification numbers associated with each FEL. You must also identify the purchaser and destination for each engine you produce to the extent this information is available.

(e) We may require you to keep additional records or to send us relevant information not required by this section in accordance with the Clean Air Act.

(a) Averaging sets. Emission credits may be exchanged only within an averaging set. For Tier 4 engines, there are two averaging sets—one for engines at or below 560 kW and another for engines above 560 kW.

(b) Emission credits from earlier tiers of standards. (1) For purposes of ABT under this subpart, you may not use emission credits generated from engines subject to emission standards under 40 CFR part 89, except as specified in § 1039.102(d)(1) or the following table:

(2) Emission credits generated from marine engines certified under the provisions of 40 CFR part 89 may not be used under this part.

(3) See 40 CFR part 89 for other restrictions that may apply for using emission credits generated under that part.

(4) If the maximum power of an engine generating credits under the Tier 2 standards in 40 CFR part 89 is at or above 37 kW and below 75 kW, you may use those credits for certifying engines under the Option #1 standards in § 1039.102.

(c) NOXand NOX+NMHC emission credits. You may use NOX emission credits without adjustment to show compliance with NOX+NMHC standards. You may use NOX+NMHC emission credits to show compliance with NOX standards, but you must adjust the NOX+NMHC emission credits downward by twenty percent when you use them, as shown in the following equation:

NOX emission credits = (0.8) × (NOX+NMHC emission credits).

(d) Other restrictions. Other sections of this part specify additional restrictions for using emission credits under certain special provisions.

[69 FR 39213, June 29, 2004, as amended at 70 FR 40464, July 13, 2005]§ 1039.745What can happen if I do not comply with the provisions of this subpart?

(a) For each engine family participating in the ABT program, the certificate of conformity is conditional upon full compliance with the provisions of this subpart during and after the model year. You are responsible to establish to our satisfaction that you fully comply with applicable requirements. We may void the certificate of conformity for an engine family if you fail to comply with any provisions of this subpart.

(b) You may certify your engine family to an FEL above an applicable standard based on a projection that you will have enough emission credits to offset the deficit for the engine family. However, we may void the certificate of conformity if you cannot show in your final report that you have enough actual emission credits to offset a deficit for any pollutant in an engine family.

(c) We may void the certificate of conformity for an engine family if you fail to keep records, send reports, or give us information we request.

(d) You may ask for a hearing if we void your certificate under this section (see § 1039.820).

Subpart I—Definitions and Other Reference Information§ 1039.801What definitions apply to this part?

The following definitions apply to this part. The definitions apply to all subparts unless we note otherwise. All undefined terms have the meaning the Act gives to them. The definitions follow:

Act means the Clean Air Act, as amended, 42 U.S.C. 7401-7671q.

Adjustable parameter means any device, system, or element of design that someone can adjust (including those which are difficult to access) and that, if adjusted, may affect emissions or engine performance during emission testing or normal in-use operation. This includes, but is not limited to, parameters related to injection timing and fueling rate. You may ask us to exclude a parameter that is difficult to access if it cannot be adjusted to affect emissions without significantly degrading engine performance, or if you otherwise show us that it will not be adjusted in a way that affects emissions during in-use operation.

Aftertreatment means relating to a catalytic converter, particulate filter, or any other system, component, or technology mounted downstream of the exhaust valve (or exhaust port) whose design function is to decrease emissions in the engine exhaust before it is exhausted to the environment. Exhaust-gas recirculation (EGR) and turbochargers are not aftertreatment.

Alcohol-fueled engine means an engine that is designed to run using an alcohol fuel. For purposes of this definition, alcohol fuels do not include fuels with a nominal alcohol content below 25 percent by volume.

Amphibious vehicle means a vehicle with wheels or tracks that is designed primarily for operation on land and secondarily for operation in water.

Auxiliary emission-control device means any element of design that senses temperature, motive speed, engine RPM, transmission gear, or any other parameter for the purpose of activating, modulating, delaying, or deactivating the operation of any part of the emission-control system.

Brake power means the usable power output of the engine, not including power required to fuel, lubricate, or heat the engine, circulate coolant to the engine, or to operate aftertreatment devices.

Calibration means the set of specifications and tolerances specific to a particular design, version, or application of a component or assembly capable of functionally describing its operation over its working range.

Carryover means relating to certification based on emission data generated from an earlier model year as described in § 1039.235(d).

Certification means relating to the process of obtaining a certificate of conformity for an engine family that complies with the emission standards and requirements in this part.

Certified emission level means the highest deteriorated emission level in an engine family for a given pollutant from either transient or steady-state testing.

Compression-ignition means relating to a type of reciprocating, internal-combustion engine that is not a spark-ignition engine.

Crankcase emissions means airborne substances emitted to the atmosphere from any part of the engine crankcase's ventilation or lubrication systems. The crankcase is the housing for the crankshaft and other related internal parts.

Critical emission-related component means any of the following components:

(1) Electronic control units, aftertreatment devices, fuel-metering components, EGR-system components, crankcase-ventilation valves, all components related to charge-air compression and cooling, and all sensors and actuators associated with any of these components.

Engine configuration means a unique combination of engine hardware and calibration within an engine family. Engines within a single engine configuration differ only with respect to normal production variability or factors unrelated to emissions.

Engine family has the meaning given in § 1039.230.

Engine manufacturer means the manufacturer of the engine. See the definition of “manufacturer” in this section.

Engine used in a locomotive means either an engine placed in the locomotive to move other equipment, freight, or passenger traffic; or an engine mounted on the locomotive to provide auxiliary power.

Equipment manufacturer means a manufacturer of nonroad equipment. All nonroad equipment manufacturing entities under the control of the same person are considered to be a single nonroad equipment manufacturer. (Note: In § 1039.626, the term “equipment manufacturer” has a narrower meaning, which applies only to that section.)

Excluded means relating to an engine that either:

(1) Has been determined not to be a nonroad engine, as specified in 40 CFR 1068.30; or

(2) Is a nonroad engine that, according to § 1039.5, is not subject to this part 1039.

Exempted has the meaning we give in 40 CFR 1068.30.

Exhaust-gas recirculation means a technology that reduces emissions by routing exhaust gases that had been exhausted from the combustion chamber(s) back into the engine to be mixed with incoming air before or during combustion. The use of valve timing to increase the amount of residual exhaust gas in the combustion chamber(s) that is mixed with incoming air before or during combustion is not considered exhaust-gas recirculation for the purposes of this part.

Family emission limit (FEL) means an emission level declared by the manufacturer to serve in place of an otherwise applicable emission standard under the ABT program in subpart H of this part. The family emission limit must be expressed to the same number of decimal places as the emission standard it replaces. The family emission limit serves as the emission standard for the engine family with respect to all required testing.

Fuel system means all components involved in transporting, metering, and mixing the fuel from the fuel tank to the combustion chamber(s), including the fuel tank, fuel tank cap, fuel pump, fuel filters, fuel lines, carburetor or fuel-injection components, and all fuel-system vents.

Fuel type means a general category of fuels such as diesel fuel or natural gas. There can be multiple grades within a single fuel type, such as high-sulfur or low-sulfur diesel fuel.

Generator-set engine means an engine used primarily to operate an electrical generator or alternator to produce electric power for other applications.

Good engineering judgment has the meaning we give in 40 CFR 1068.30. See 40 CFR 1068.5 for the administrative process we use to evaluate good engineering judgment.

(2) For testing, high-sulfur diesel fuel has the meaning we give in 40 CFR part 1065.

Hydrocarbon (HC) means the hydrocarbon group on which the emission standards are based for each fuel type. For alcohol-fueled engines, HC means total hydrocarbon equivalent (THCE). For all other engines, HC means nonmethane hydrocarbon (NMHC).

Identification number means a unique specification (for example, a model number/serial number combination) that allows someone to distinguish a particular engine from other similar engines.

Intermediate test speed has the meaning given in 40 CFR 1065.1001.

Low-hour means relating to an engine with stabilized emissions and represents the undeteriorated emission level. This would generally involve less than 300 hours of operation.

(2) For testing, low-sulfur diesel fuel has the meaning we give in 40 CFR part 1065.

Manufacture means the physical and engineering process of designing, constructing, and assembling a nonroad engine or a piece of nonroad equipment.

Manufacturer has the meaning given in section 216(1) of the Act. In general, this term includes any person who manufactures an engine, vehicle, or piece of equipment for sale in the United States or otherwise introduces a new nonroad engine into commerce in the United States. This includes importers who import engines, equipment, or vehicles for resale. (Note: In § 1039.626, the term “equipment manufacturer” has a narrower meaning, which applies only to that section.)

Marine engine means a nonroad engine that is installed or intended to be installed on a marine vessel. This includes a portable auxiliary marine engine only if its fueling, cooling, or exhaust system is an integral part of the vessel. There are two kinds of marine engines:

(1) Propulsion marine engine means a marine engine that moves a vessel through the water or directs the vessel's movement.

(2) Auxiliary marine engine means a marine engine not used for propulsion.

Marine vessel has the meaning given in 1 U.S.C. 3, except that it does not include amphibious vehicles. The definition in 1 U.S.C. 3 very broadly includes every craft capable of being used as a means of transportation on water.

Maximum engine power has the meaning given in § 1039.140. Note that § 1039.230 generally disallows grouping engines from different power categories in the same engine family.

Maximum test speed has the meaning we give in 40 CFR 1065.1001.

Maximum test torque has the meaning we give in 40 CFR 1065.1001.

Model year means one of the following things:

(1) For freshly manufactured equipment and engines (see definition of “new nonroad engine,” paragraph (1)), model year means one of the following:

(i) Calendar year.

(ii) Your annual new model production period if it is different than the calendar year. This must include January 1 of the calendar year for which the model year is named. It may not begin before January 2 of the previous calendar year and it must end by December 31 of the named calendar year.

(2) For an engine that is converted to a nonroad engine after being placed into service as a stationary engine, or being certified and placed into service as a motor vehicle engine, model year means the calendar year in which the engine was originally produced. For a motor vehicle engine that is converted to be a nonroad engine without having been certified, model year means the calendar year in which the engine becomes a new nonroad engine. (See definition of “new nonroad engine,” paragraph (2).)

(3) For a nonroad engine excluded under § 1039.5 that is later converted to operate in an application that is not excluded, model year means the calendar year in which the engine was originally produced (see definition of “new nonroad engine,” paragraph (3)).

(4) For engines that are not freshly manufactured but are installed in new nonroad equipment, model year means the calendar year in which the engine is installed in the new nonroad equipment (see definition of “new nonroad engine,” paragraph (4)).

(5) For imported engines:

(i) For imported engines described in paragraph (5)(i) of the definition of “new nonroad engine,” model year has the meaning given in paragraphs (1) through (4) of this definition.

(ii) For imported engines described in paragraph (5)(ii) of the definition of “new nonroad engine,” model year has the meaning given in 40 CFR 89.602 for independent commercial importers.

(iii) For imported engines described in paragraph (5)(iii) of the definition of “new nonroad engine,” model year means the calendar year in which the engine is first assembled in its imported configuration, unless specified otherwise in this part or in 40 CFR part 1068.

Motor vehicle has the meaning we give in 40 CFR 85.1703(a).

New nonroad engine means any of the following things:

(1) A freshly manufactured nonroad engine for which the ultimate purchaser has never received the equitable or legal title. This kind of engine might commonly be thought of as “brand new.” In the case of this paragraph (1), the engine is new from the time it is produced until the ultimate purchaser receives the title or the product is placed into service, whichever comes first.

(2) An engine originally manufactured as a motor vehicle engine or a stationary engine that is later used or intended to be used in a piece of nonroad equipment. In this case, the engine is no longer a motor vehicle or stationary engine and becomes a “new nonroad engine.” The engine is no longer new when it is placed into nonroad service. This paragraph (2) applies if a motor vehicle engine or a stationary engine is installed in nonroad equipment, or if a motor vehicle or a piece of stationary equipment is modified (or moved) to become nonroad equipment.

(3) A nonroad engine that has been previously placed into service in an application we exclude under § 1039.5, when that engine is installed in a piece of equipment that is covered by this part 1039. The engine is no longer new when it is placed into nonroad service covered by this part 1039. For example, this would apply to marine diesel engine that is no longer used in a marine vessel but is instead installed in a piece of nonroad equipment subject to the provisions of this part.

(4) An engine not covered by paragraphs (1) through (3) of this definition that is intended to be installed in new nonroad equipment. This generally includes installation of used engines in new equipment. The engine is no longer new when the ultimate purchaser receives a title for the equipment or the product is placed into service, whichever comes first.

(5) An imported nonroad engine, subject to the following provisions:

(i) An imported nonroad engine covered by a certificate of conformity issued under this part that meets the criteria of one or more of paragraphs (1) through (4) of this definition, where the original engine manufacturer holds the certificate, is new as defined by those applicable paragraphs.

(ii) An imported engine covered by a certificate of conformity issued under this part, where someone other than the original engine manufacturer holds the certificate (such as when the engine is modified after its initial assembly), is a new nonroad engine when it is imported. It is no longer new when the ultimate purchaser receives a title for the engine or it is placed into service, whichever comes first.

(iii) An imported nonroad engine that is not covered by a certificate of conformity issued under this part at the time of importation is new, but only if it was produced on or after the dates shown in the following table. This addresses uncertified engines and equipment initially placed into service that someone seeks to import into the United States. Importation of this kind of engine (or equipment containing such an engine) is generally prohibited by 40 CFR part 1068. However, the importation of such an engine is not prohibited if the engine has an earlier model year than that identified in the following table:

(1) A nonroad piece of equipment for which the ultimate purchaser has never received the equitable or legal title. The product is no longer new when the ultimate purchaser receives this title or the product is placed into service, whichever comes first.

(2) An imported nonroad piece of equipment with an engine not covered by a certificate of conformity issued under this part at the time of importation and manufactured after the requirements of this part start to apply (see § 1039.1).

Noncommercial fuel means a combustible product that is not marketed as a commercial fuel, but is used as a fuel for nonroad engines. For example, this includes methane that is produced and released from landfills or oil wells, or similar unprocessed fuels that are not intended to meet any otherwise applicable fuel specifications. See § 1039.615 for provisions related to engines designed to burn noncommercial fuels.

Noncompliant engine means an engine that was originally covered by a certificate of conformity, but is not in the certified configuration or otherwise does not comply with the conditions of the certificate.

Nonconforming engine means an engine not covered by a certificate of conformity that would otherwise be subject to emission standards.

Nonmethane hydrocarbons (NMHC) means the sum of all hydrocarbon species except methane. Refer to 40 CFR 1065.660 for NMHC determination.

Nonroad means relating to nonroad engines or equipment that includes nonroad engines.

Nonroad engine has the meaning we give in 40 CFR 1068.30. In general this means all internal-combustion engines except motor vehicle engines, stationary engines, engines used solely for competition, or engines used in aircraft. This part does not apply to all nonroad engines (see § 1039.5).

Nonroad equipment means a piece of equipment that is powered by one or more nonroad engines.

Official emission result means the measured emission rate for an emission-data engine on a given duty cycle before the application of any deterioration factor, but after the applicability of regeneration adjustment factors.

Opacity means the fraction of a beam of light, expressed in percent, which fails to penetrate a plume of smoke, as measured by the procedure specified in § 1039.501.

Owners manual means a document or collection of documents prepared by the engine manufacturer for the owner or operator to describe appropriate engine maintenance, applicable warranties, and any other information related to operating or keeping the engine. The owners manual is typically provided to the ultimate purchaser at the time of sale.

Oxides of nitrogen has the meaning given in 40 CFR 1065.1001.

Particulate trap means a filtering device that is designed to physically trap all particulate matter above a certain size.

Piece of equipment means any vehicle, vessel, or other type of equipment using engines to which this part applies.

Placed into service means put into initial use for its intended purpose.

Point of first retail sale means the location at which the initial retail sale occurs. This generally means an equipment dealership, but may also include an engine seller or distributor in cases where loose engines are sold to the general public for uses such as replacement engines.

Power category means a specific range of maximum engine power that defines the applicability of standards. For example, references to the 56-130 kW power category and 56 ≤ kW < 130 include all engines with maximum engine power at or above 56 kW but below 130 kW. Also references to 56-560 kW power categories or 56 ≤ kW ≤ 560 include all engines with maximum engine power at or above 56 kW but at or below 560 kW, even though these engines span multiple power categories. Note that in some cases, FEL caps are based on a subset of a power category. The power categories are defined as follows:

(1) Engines with maximum power below 19 kW.

(2) Engines with maximum power at or above 19 kW but below 56 kW.

(3) Engines with maximum power at or above 56 kW but below 130 kW.

(4) Engines with maximum power at or above 130 kW but at or below 560 kW.

(5) Engines with maximum power above 560 kW.

Ramped-modal means relating to the ramped-modal type of steady-state test described in § 1039.505.

Rated speed means the maximum full-load governed speed for governed engines and the speed of maximum power for ungoverned engines.

Revoke has the meaning we give in 40 CFR 1068.30.

Round has the meaning given in 40 CFR 1065.1001.

Scheduled maintenance means adjusting, repairing, removing, disassembling, cleaning, or replacing components or systems periodically to keep a part or system from failing, malfunctioning, or wearing prematurely. It also may mean actions you expect are necessary to correct an overt indication of failure or malfunction for which periodic maintenance is not appropriate.

Small-volume engine manufacturer means a small business engine manufacturer that had engine families certified to meet the requirements of 40 CFR part 89 before 2003 (40 CFR part 89, revised as of July 1, 2002), had annual U.S.-directed production of no more than 2,500 units in 2002 and all earlier calendar years, and has 1000 or fewer employees. For manufacturers owned by a parent company, the production limit applies to the production of the parent company and all its subsidiaries and the employee limit applies to the total number of employees of the parent company and all its subsidiaries.

Spark-ignition means relating to a gasoline-fueled engine or any other type of engine with a spark plug (or other sparking device) and with operating characteristics significantly similar to the theoretical Otto combustion cycle. Spark-ignition engines usually use a throttle to regulate intake air flow to control power during normal operation.

Steady-state has the meaning given in 40 CFR 1065.1001.

Sulfur-sensitive technology means an emission-control technology that experiences a significant drop in emission-control performance or emission-system durability when an engine is operated on low-sulfur fuel (i.e., fuel with a sulfur concentration of 300 to 500 ppm) as compared to when it is operated on ultra low-sulfur fuel (i.e., fuel with a sulfur concentration less than 15 ppm). Exhaust-gas recirculation is not a sulfur-sensitive technology.

Suspend has the meaning we give in 40 CFR 1068.30.

Test engine means an engine in a test sample.

Test sample means the collection of engines selected from the population of an engine family for emission testing. This may include testing for certification, production-line testing, or in-use testing.

Tier 4 means relating to the Tier 4 emission standards, as shown in § 1039.101 and § 1039.102. This includes the emission standards that are shown in § 1039.101 and § 1039.102 that are unchanged from Tier 2 or Tier 3 emission standards.

Total hydrocarbon has the meaning given in 40 CFR 1065.1001. This generally means the combined mass of organic compounds measured by the specified procedure for measuring total hydrocarbon, expressed as a hydrocarbon with an atomic hydrogen-to-carbon ratio of 1.85:1.

Total hydrocarbon equivalent has the meaning given in 40 CFR 1065.1001. This generally means the sum of the carbon mass contributions of non-oxygenated hydrocarbons, alcohols and aldehydes, or other organic compounds that are measured separately as contained in a gas sample, expressed as exhaust hydrocarbon from petroleum-fueled engines. The atomic hydrogen-to-carbon ratio of the equivalent hydrocarbon is 1.85:1.

Ultimate purchaser means, with respect to any new nonroad equipment or new nonroad engine, the first person who in good faith purchases such new nonroad equipment or new nonroad engine for purposes other than resale.

(2) For testing, ultra low-sulfur diesel fuel has the meaning we give in 40 CFR part 1065.

United States has the meaning we give in 40 CFR 1068.30.

Upcoming model year means for an engine family the model year after the one currently in production.

U.S.-directed production volume means the number of engine units, subject to the requirements of this part, produced by a manufacturer for which the manufacturer has a reasonable assurance that sale was or will be made to ultimate purchasers in the United States.

Useful life means the period during which the engine is designed to properly function in terms of reliability and fuel consumption, without being remanufactured, specified as a number of hours of operation or calendar years, whichever comes first. It is the period during which a nonroad engine is required to comply with all applicable emission standards. See § 1039.101(g).

Variable-speed engine means an engine that is not a constant-speed engine.

Void has the meaning we give in 40 CFR 1068.30.

Volatile liquid fuel means any fuel other than diesel or biodiesel that is a liquid at atmospheric pressure and has a Reid Vapor Pressure higher than 2.0 pounds per square inch.

We (us, our) means the Administrator of the Environmental Protection Agency and any authorized representatives.

(a) Clearly show what you consider confidential by marking, circling, bracketing, stamping, or some other method.

(b) We will store your confidential information as described in 40 CFR part 2. Also, we will disclose it only as specified in 40 CFR part 2. This applies both to any information you send us and to any information we collect from inspections, audits, or other site visits.

(c) If you send us a second copy without the confidential information, we will assume it contains nothing confidential whenever we need to release information from it.

(d) If you send us information without claiming it is confidential, we may make it available to the public without further notice to you, as described in 40 CFR 2.204.

§ 1039.820How do I request a hearing?

(a) You may request a hearing under certain circumstances, as described elsewhere in this part. To do this, you must file a written request, including a description of your objection and any supporting data, within 30 days after we make a decision.

(b) For a hearing you request under the provisions of this part, we will approve your request if we find that your request raises a substantial factual issue.

(c) If we agree to hold a hearing, we will use the procedures specified in 40 CFR part 1068, subpart G.

§ 1039.825What reporting and recordkeeping requirements apply under this part?

Under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.), the Office of Management and Budget approves the reporting and recordkeeping specified in the applicable regulations. The following items illustrate the kind of reporting and recordkeeping we require for engines and equipment regulated under this part:

(a) We specify the following requirements related to engine certification in this part 1039:

(1) In § 1039.20 we require engine manufacturers to label stationary engines that do not meet the standards in this part.

(2) In § 1039.135 we require engine manufacturers to keep certain records related to duplicate labels sent to equipment manufacturers.

(3) [Reserved]

(4) In subpart C of this part we identify a wide range of information required to certify engines.

(5) [Reserved]

(6) [Reserved]

(7) In subpart G of this part we identify several reporting and recordkeeping items for making demonstrations and getting approval related to various special compliance provisions. For example, equipment manufacturers must submit reports and keep records related to the flexibility provisions in § 1039.625.

1a Steady-state53Engine governed100.1b Transition20Engine governedLinear transition.2a Steady-state101Engine governed10.2b Transition20Engine governedLinear transition.3a Steady-state277Engine governed75.3b Transition20Engine governedLinear transition.4a Steady-state339Engine governed25.4b Transition20Engine governedLinear transition.5 Steady-state350Engine governed50.1 The percent torque is relative to maximum test torque.2 Advance from one mode to the next within a 20-second transition phase. During the transition phase, command a linear progression from the torque setting of the current mode to the torque setting of the next mode.

(b) The following duty cycles apply for variable-speed engines with maximum engine power below 19 kW:

10020030040050060070080090010001100120013001400150016001700180019002000210022002300241325132613271328132913301631163221334133471835921361720373342385746394433403104122274233434380494410547459870461043647104654896714910162501025151102505210246531024154102315589256820574715823159136018611362156316641465146606671468921692556706426716031726320736224746487558447665107765127868237969308071308174158271238373208473218573198670338770348865478966479064539165459266389367499469399569399666429771299875299972231007422101752410273301037424104776105761210674391077230108752210978641101023411110328112103281131031911410332115104251161033811710339118103341191024412010338121102431221033412310241124103441251033712610327127104131281043012910419130103281311044013210432133101631341025413510252136102511371034013810434139102361401044414110344142104331431022714410326145795314651371472423148133314919551504530151347152144153816154156155394715639415735261582738159434016014231611010162153316335721646039165553116647301671671680616908170081710217221717310281742831175333017636017719101781181790161801318114182151831618415185131861418714188161898181902051191491919241131933116194282119521171963121197218198014199012200382013222021220203142020416172052018206273420732332084131209433121037332112618212182921314512141311215129216153321720252182517219312922036662216640222501322316242242650225642322681202278311228792322976312306824231593323259323325723421102352019236410237572384523946240462414524275243162824428252455253246508247264024848292495439250604225148182525451253889025410384255103852561028425758662586497259568026051672615296262636226371626433162654745266435626742272684264269757427068962718661272660273370274453727568962768097277929627890972798296280948128190852829665283709628455952857096286799628781712887160289926529082632916147292523729324029420729539482963954297635829853312995124300484030139030235183033616304291730528213063115307311030843193094963310786131178463126665313789731484633155726316362231720343181983199103205532171132215153231293241327325152832616283271631328152032917033020343312125332200333232533430583356396336836033761033826033929443406897341809734288973439988344102863451008234674793475779348769734984973508697351819835283833536596354937235563603567249357562735829035918133602511361282436234533636583364804436577463667650367455236861983696169370634937132037210837317737416133751163769537791237812463791530380262838113938216213832443843643385658538678663876339388323438946553904742391423939227039314539414143952454396609039753663987048399779340079674014665402699840380974047497405759840656614074204083632409344341068834111024841262041341394147186415915241689554178956418885841978694209839421646142290344238838424976242510053426815842774514287657429767243085724318460432837243383724348672435897243686724378772438887243988714408772441857144288724438872444847244583734467773447747344876724494677450786245179354528238453814145479374557835456783845778464587549459735046079584617971462834446353484644048465517546675724678967468936046989734708673471817347278734737873474767347579734768273477867347888724799271480975448173434823664483633148478148569274866728487729488719489783649081564917553492604549350374946641495516149668474972942498247349964715009071501100615029473503847350479735057572506787350780735088173509817351083735118573512847351385735148673515857351685735178572518857351983735207973521787352281735238272524945652566485263571527514452860235296410530631453170375327645533781853476515357533536811753776455387630539801454071185417114542711154365254431265452472546647054777625488068549835355083505518350552854355386455548935555826155687505578555558894955987705609139561723562432556330605644045565373256637325674370568705456977475707966571855357283575738652574855157570395765055773836578307157975535808440581854258286495838657584896858599615867729587817258889695894956590797059110459592103545931025659410256595103615961026459710360598937259986736007673601594960246226034065604723160572276066744607683760867426096850610774361158461222376135769614683861573261640146174238618646961964746206773621657362268736236549624810625372562624696276871628707162976706307172631736963276706337772634777263577726367770637767163876716397771640777164178706427770643777164479726457870646807064782716488471649837165083736518170652807165378716547670655767065676716577971658787165981706608372661847166286716638771664927266591726669071667907166891716699070670907267191716729071673907167492726759369676907067793726789170679897168091716819071682907168392716849171685937168693686879868688986768910069690996869110071692996869310069694102726951016969610069697102716981027169910269700102717011026870210069703102707041026870510270706102727071026870810269709100687101027171110164712102697131026971410169715102647161026971710268718102707191026972010270721102707221026272310438724104157251022472610245727102477281044072910152730103327311025073210330733103447341024073510343736103417371024673810339739102417401034174110238742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The percent torque is relative to maximum torque at the commanded engine speed.[69 FR 39213, June 29, 2004, as amended at 70 FR 40465, July 13, 2005]Pt. 1042PART 1042—CONTROL OF EMISSIONS FROM NEW AND IN-USE MARINE COMPRESSION-IGNITION ENGINES AND VESSELSSubpart A—Overview and ApplicabilitySec.1042.1Applicability.1042.2Who is responsible for compliance?1042.5Exclusions.1042.10Organization of this part.1042.15Do any other regulation parts apply to me?1042.30Submission of information.Subpart B—Emission Standards and Related Requirements1042.101Exhaust emission standards for Category 1 engines and Category 2 engines.1042.104Exhaust emission standards for Category 3 engines.1042.107Evaporative emission standards.1042.110Recording reductant use and other diagnostic functions.1042.115Other requirements.1042.120Emission-related warranty requirements.1042.125Maintenance instructions.1042.130Installation instructions for vessel manufacturers.1042.135Labeling.1042.140Maximum engine power, displacement, power density, and maximum in-use engine speed.1042.145Interim provisions.Subpart C—Certifying Engine Families1042.201General requirements for obtaining a certificate of conformity.1042.205Application requirements.1042.210Preliminary approval.1042.220Amending maintenance instructions.1042.225Amending applications for certification.1042.230Engine families.1042.235Emission testing related to certification.1042.240Demonstrating compliance with exhaust emission standards.1042.245Deterioration factors.1042.250Recordkeeping and reporting.1042.255EPA decisions.Subpart D—Testing Production-Line Engines1042.301General provisions.1042.302Applicability of this subpart for Category 3 engines.1042.305Preparing and testing production-line engines.1042.310Engine selection for Category 1 and Category 2 engines.1042.315Determining compliance.1042.320What happens if one of my production-line engines fails to meet emission standards?1042.325What happens if an engine family fails the production-line testing requirements?1042.330Selling engines from an engine family with a suspended certificate of conformity.1042.335Reinstating suspended certificates.1042.340When may EPA revoke my certificate under this subpart and how may I sell these engines again?1042.345Reporting.1042.350Recordkeeping.Subpart E—In-Use Testing1042.401General Provisions.Subpart F—Test Procedures1042.501How do I run a valid emission test?1042.505Testing engines using discrete-mode or ramped-modal duty cycles.1042.515Test procedures related to not-to-exceed standards.1042.520What testing must I perform to establish deterioration factors?1042.525How do I adjust emission levels to account for infrequently regenerating aftertreatment devices?Subpart G—Special Compliance Provisions1042.601.General compliance provisions for marine engines and vessels.1042.605Dressing engines already certified to other standards for nonroad or heavy-duty highway engines for marine use.1042.610Certifying auxiliary marine engines to land-based standards.1042.615Replacement engine exemption.1042.620Engines used solely for competition.1042.625Special provisions for engines used in emergency applications.1042.630Personal-use exemption.1042.635National security exemption.1042.640Special provisions for branded engines.1042.650Exemptions for migratory vessels and auxiliary engines on Category 3 vessels.1042.655 Special certification provisions for—Category 3 engines with aftertreatment.1042.660Requirements for vessel manufacturers, owners, and operators.1042.670Special provisions for gas turbine engines.Subpart H—Averaging, Banking, and Trading for Certification1042.701General provisions.1042.705Generating and calculating emission credits.1042.710Averaging emission credits.1042.715Banking emission credits.1042.720Trading emission credits.1042.725Information required for the application for certification.1042.730ABT reports.1042.735Recordkeeping.1042.745Noncompliance.Subpart I—Special Provisions for Remanufactured Marine Engines1042.801General provisions.1042.810Requirements for owner/operators and installers during remanufacture.1042.815Demonstrating availability.1042.820Emission standards and required emission reductions for remanufactured engines.1042.825Baseline determination.1042.830Labeling.1042.835Certification of remanufactured engines.1042.836Marine certification of locomotive remanufacturing systems.1042.840Application requirements for remanufactured engines.1042.845Remanufactured engine families.1042.850Exemptions and hardship relief.Subpart J—Definitions and Other Reference Information1042.901Definitions.1042.905Symbols, acronyms, and abbreviations.1042.910Reference materials.1042.915Confidential information.1042.920Hearings.1042.925Reporting and recordkeeping requirements.Appendix I to Part 1042—Summary of Previous Emission StandardsAppendix II to Part 1042—Steady-state Duty CyclesAppendix III to Part 1042—Not-to-Exceed ZonesAuthority:

42 U.S.C. 7401-7671q.

Source:

73 FR 37243, June 30, 2008, unless otherwise noted.

Subpart A—Overview and Applicability§ 1042.1Applicability.

Except as provided in this section and § 1042.5, the regulations in this part 1042 apply for all new compression-ignition marine engines (including new engines deemed to be compression-ignition engines under this section) and vessels containing such engines. See § 1042.901 for the definitions of engines and vessels considered to be new.

(a) The emission standards of this part 1042 for freshly manufactured engines apply for new marine engines starting with the model years noted in the following tables:

(b) New engines with maximum engine power below 37 kW and originally manufactured and certified before the model years identified in Table 1 to this section are subject to emission standards and requirements of 40 CFR part 89. The provisions of this part 1042 do not apply for such engines certified under 40 CFR part 89, except as follows beginning June 29, 2010:

(1) The allowances of this part apply.

(2) The definitions of “new marine engine” and “model year” apply.

(c) Freshly manufactured engines with maximum engine power at or above 37 kW and originally manufactured and certified before the model years identified in Table 1 to this section are subject to emission standards and requirements of 40 CFR part 94. The provisions of this part 1042 do not apply for such engines certified under 40 CFR part 89, except as follows beginning June 29, 2010:

(1) The allowances of this part apply.

(2) The definitions of “new marine engine” and “model year” apply.

(3) The remanufacturing provisions in subpart I of this part may apply for remanufactured engines originally manufactured in model years before the model years identified in Table 1 to this section.

(4) 40 CFR part 94 specifies other provisions from this part 1042 that apply.

(d) Engines with model years before those specified in Table 1 to this section are generally subject to the Tier 1 or Tier 2 standards of 40 CFR part 94. Such engines may be certified to those standards under this part 1042. All the provisions of this part except the emission standards apply to such engines if they are certified under this part. Note that engines subject to, but not certified to, the standards of 40 CFR part 94 are subject to the requirements and prohibitions of this part and 40 CFR part 1068.

(e) The requirements of subpart I of this part apply to remanufactured Category 1 and Category 2 engines beginning July 7, 2008.

(f) The marine engines listed in this paragraph (f) are subject to all the requirements of this part even if they do not meet the definition of “compression-ignition” in § 1042.901. The following engines are deemed to be compression-ignition engines for purposes of this part:

(1) Marine engines powered by natural gas or other gaseous fuels with maximum engine power at or above 250 kW. Note that gaseous-fueled engines with maximum engine power below 250 kW may or may not meet the definition of “compression-ignition” in § 1042.901.

(2) Marine gas turbine engines.

(3) Other marine internal combustion engines that do not meet the definition of “spark-ignition” in § 1042.901.

(g) Some of the provisions of this part may apply for other engines as specified in 40 CFR part 1043.

The regulations in this part 1042 contain provisions that affect both engine manufacturers and others. However, the requirements of this part, other than those of subpart I of this part, are generally addressed to the engine manufacturer for freshly manufactured marine engines or other certificate holders. The term “you” generally means the engine manufacturer, as defined in § 1042.901, especially for issues related to certification (including production-line testing, reporting, etc.).

[75 FR 22995, Apr. 30, 2010]§ 1042.5Exclusions.

This part does not apply to the following marine engines:

(a) Foreign vessels. The requirements and prohibitions of this part do not apply to engines installed on foreign vessels, as defined in § 1042.901. Note however, that the requirements and prohibitions of this part do apply to engines installed on any formerly foreign vessels that are reflagged as U.S.-flagged vessels.

(b) Hobby engines. Engines installed in reduced-scale models of vessels that are not capable of transporting a person are not subject to the provisions of this part 1042.

(c) Recreational gas turbine engines. The requirements and prohibitions of this part do not apply to gas turbine engines installed on recreational vessels, as defined in § 1042.901.

(a) Subpart A of this part defines the applicability of this part 1042 and gives an overview of regulatory requirements.

(b) Subpart B of this part describes the emission standards and other requirements that must be met to certify engines under this part. Note that § 1042.145 discusses certain interim requirements and compliance provisions that apply only for a limited time.

(c) Subpart C of this part describes how to apply for a certificate of conformity.

(d) Subpart D of this part describes general provisions for testing production-line engines.

(e) Subpart E of this part describes general provisions for testing in-use engines.

(f) Subpart F of this part and 40 CFR 1065 describe how to test your engines.

(g) Subpart G of this part and 40 CFR part 1068 describe requirements, prohibitions, and other provisions that apply to engine manufacturers, vessel manufacturers, owners, operators, rebuilders, and all others.

(h) Subpart H of this part describes how you may generate and use emission credits to certify your engines.

(i) Subpart I of this part describes how these regulations apply for remanufactured engines.

(j) Subpart J of this part contains definitions and other reference information.

§ 1042.15Do any other regulation parts apply to me?

(a) Part 1043 of this chapter describes requirements related to international pollution prevention that apply for some of the engines subject to this part.

(b) The evaporative emission requirements of part 1060 of this chapter apply to vessels that include installed engines fueled with a volatile liquid fuel as specified in § 1042.107. (Note: Conventional diesel fuel is not considered to be a volatile liquid fuel.)

(c) Part 1065 of this chapter describes procedures and equipment specifications for testing engines to measure exhaust emissions. Subpart F of this part 1042 describes how to apply the provisions of part 1065 of this chapter to determine whether engines meet the exhaust emission standards in this part.

(d) The requirements and prohibitions of part 1068 of this chapter apply to everyone, including anyone who manufactures, imports, installs, owns, operates, or rebuilds any of the engines subject to this part 1042, or vessels containing these engines. Part 1068 of this chapter describes general provisions, including these seven areas:

(a) This part includes various requirements to record data or other information. Refer to § 1042.925 and 40 CFR 1068.25 regarding recordkeeping requirements. Unless we specify otherwise, store these records in any format and on any media and keep them readily available for one year after you send an associated application for certification, or one year after you generate the data if they do not support an application for certification. You must promptly send us organized, written records in English if we ask for them. We may review them at any time.

(b) The regulations in § 1042.255 and 40 CFR 1068.101 describe your obligation to report truthful and complete information and the consequences of failing to meet this obligation. This includes information not related to certification.

(c) Send all reports and requests for approval to the Designated Compliance Officer (see § 1042.901).

(d) Any written information we require you to send to or receive from another company is deemed to be a required record under this section. Such records are also deemed to be submissions to EPA. We may require you to send us these records whether or not you are a certificate holder.

7.0 ≤ disp. < 15.0kW < 20002013+0.146.22000 ≤ kW < 37002013+0.14b 7.815.0 ≤ disp. < 20.0 ckW < 20002014+0.347.020.0 ≤ disp. < 25.0 ckW < 20002014+0.279.825.0 ≤ disp. < 30.0 ckW < 20002014+0.2711.0a No Tier 3 standards apply for Category 2 engines at or above 3700 kW. See § 1042.1(c) and paragraph (a)(7) of this section for the standards that apply for these engines.b For engines subject to the 7.8 g/kW-hr NOX+HC standard, FELs may not be higher than the Tier 1 NOX standard specified in Appendix I of this part.c No Tier 3 standards apply for Category 2 engines with per-cylinder displacement above 15.0 liters if maximum engine power is at or above 2000 kW. See § 1042.1(c) and paragraph (a)(7) of this section for the standards that apply for these engines.

(4) For Tier 3 engines at or above 19 kW and below 75 kW with displacement below 0.9 L/cyl, you may alternatively certify some or all of your engine families to a PM emission standard of 0.20 g/kW-hr and a NOX+HC emission standard of 5.8 g/kW-hr for 2014 and later model years.

(5) Starting with the 2014 model year, recreational marine engines at or above 3700 kW (with any displacement) must be certified under this part 1042 to the Tier 3 standards specified in this section for 3.5 to 7.0 L/cyl recreational marine engines.

(6) Interim Tier 4 PM standards apply for 2014 and 2015 model year engines between 2000 and 3700 kW as specified in this paragraph (a)(6). These engines are considered to be Tier 4 engines.

(i) For Category 1 engines, the Tier 3 PM standards from Table 1 to this section continue to apply. PM FELs for these engines may not be higher than the applicable Tier 2 PM standards specified in Appendix I of this part.

(ii) For Category 2 engines with per-cylinder displacement below 15.0 liters, the Tier 3 PM standards from Table 2 to this section continue to apply. PM FELs for these engines may not be higher than 0.27 g/kW-hr.

(iii) For Category 2 engines with per-cylinder displacement at or above 15.0 liters, the PM standard is 0.34 g/kW-hr for engines at or above 2000 kW and below 3300 kW, and 0.27 g/kW-hr for engines at or above 3300 kW and below 3700 kW. PM FELs for these engines may not be higher than 0.50 g/kW-hr.

(7) Except as described in paragraph (a)(8) of this section, the Tier 4 standards for PM, NOX, and HC emissions are described in the following table:

(8) The following optional provisions apply for complying with the Tier 3 and Tier 4 standards specified in paragraphs (a)(3) and (6) of this section:

(i) You may use NOX credits accumulated through the ABT program to certify Tier 4 engines to a NOX+HC emission standard of 1.9 g/kW-hr instead of the NOX and HC standards that would otherwise apply by certifying your family to a NOX+HC FEL. Calculate the NOX credits needed as specified in subpart H of this part using the NOX+HC emission standard and FEL in the calculation instead of the otherwise applicable NOX standard and FEL. You may not generate credits relative to the alternate standard or certify to the standard without using credits.

(ii) For engines below 1000 kW, you may delay complying with the Tier 4 standards in the 2017 model year for up to nine months, but you must comply no later than October 1, 2017.

(iii) For engines at or above 3700 kW, you may delay complying with the Tier 4 standards in the 2016 model year for up to twelve months, but you must comply no later than December 31, 2016.

(iv) For Category 2 engines at or above 1400 kW, you may alternatively comply with the Tier 3 and Tier 4 standards specified in Table 4 of this section instead of the NOX, HC, NOX+HC, and PM standards specified in paragraphs (a)(3) and (6) of this section. The CO standards specified in paragraph (a)(2) of this section apply without regard to whether you choose this option. If you choose this option, you must do so for all engines at or above 1400 kW in the same displacement category (that is, 7-15, 15-20, 20-25, or 25-30 liters per cylinder) in model years 2012 through 2015.

(b) Averaging, banking, and trading. You may generate or use emission credits under the averaging, banking, and trading (ABT) program as described in subpart H of this part for demonstrating compliance with NOX, NOX+HC, and PM emission standards for Category 1 and Category 2 engines. You may also use NOX or NOX+HC emission credits to comply with the alternate NOX+HC standard in paragraph (a)(8)(i) of this section. Generating or using emission credits requires that you specify a family emission limit (FEL) for each pollutant you include in the ABT program for each engine family. These FELs serve as the emission standards for the engine family with respect to all required testing instead of the standards specified in paragraph (a) of this section. The FELs determine the not-to-exceed standards for your engine family, as specified in paragraph (c) of this section. Unless otherwise specified, the following FEL caps apply:

(1) FELs for Tier 3 engines may not be higher than the applicable Tier 2 standards specified in Appendix I of this part.

(2) FELs for Tier 4 engines may not be higher than the applicable Tier 3 standards specified in paragraph (a)(3) of this section.

(c) Not-to-exceed standards. Except as noted in § 1042.145(e), exhaust emissions from all engines subject to the requirements of this part may not exceed the not-to-exceed (NTE) standards as follows:

(1) Use the following equation to determine the NTE standards:

(i) NTE standard for each pollutant = STD × M.

Where:STD = The standard specified for that pollutant in this section if you certify without using ABT for that pollutant; or the FEL for that pollutant if you certify using ABT.M = The NTE multiplier for that pollutant.

(ii) Round each NTE standard to the same number of decimal places as the emission standard.

(2) Determine the applicable NTE zone and subzones as described in § 1042.515. Determine NTE multipliers for specific zones and subzones and pollutants as follows:

(i) For commercial marine engines certified using the duty cycle specified in § 1042.505(b)(1), except for variable-speed propulsion marine engines used with controllable-pitch propellers or with electrically coupled propellers, apply the following NTE multipliers:

(ii) For recreational marine engines certified using the duty cycle specified in § 1042.505(b)(2), except for variable-speed marine engines used with controllable-pitch propellers or with electrically coupled propellers, apply the following NTE multipliers:

(iii) For variable-speed marine engines used with controllable-pitch propellers or with electrically coupled propellers that are certified using the duty cycle specified in § 1042.505(b)(1), (2), or (3), apply the following NTE multipliers:

(D) Subzone 2: 1.5 for Tier 4 standards and Tier 3 PM and CO standards. However, there is no NTE standard for PM emissions if the engine family's applicable standard for PM is at or above 0.07 g/kW-hr.

(3) The NTE standards apply to your engines whenever they operate within the NTE zone for an NTE sampling period of at least thirty seconds, during which only a single operator demand set point may be selected. Engine operation during a change in operator demand is excluded from any NTE sampling period. There is no maximum NTE sampling period.

(4) Collect emission data for determining compliance with the NTE standards using the procedures described in subpart F of this part.

(5) You may ask us to accept as compliant an engine that does not fully meet specific requirements under the applicable NTE standards where such deficiencies are necessary for safety.

(d) Fuel types. The exhaust emission standards in this section apply for engines using the fuel type on which the engines in the engine family are designed to operate.

(1) You must meet the numerical emission standards for hydrocarbons in this section based on the following types of hydrocarbon emissions for engines powered by the following fuels:

(i) Alcohol-fueled engines must comply with Tier 3 HC standards based on THCE emissions and with Tier 4 standards based on NMHCE emissions.

(ii) Natural gas-fueled engines must comply with HC standards based on NMHC emissions.

(iii) Diesel-fueled and all other engines not described in paragraph (d)(1)(i) or (ii) of this section must comply with Tier 3 HC standards based on THC emissions and with Tier 4 standards based on NMHC emissions.

(2) Tier 3 and later engines must comply with the exhaust emission standards when tested using test fuels containing 15 ppm or less sulfur (ultra low-sulfur diesel fuel). Manufacturers may use low-sulfur diesel fuel (without request) to certify an engine otherwise requiring an ultra low-sulfur test fuel; however, emissions may not be corrected to account for the effects of using higher sulfur fuel.

(3) Engines designed to operate using residual fuel must comply with the standards and requirements of this part when operated using residual fuel in addition to complying with the requirements of this part when operated using diesel fuel.

(e) Useful life. Your engines must meet the exhaust emission standards of this section over their full useful life, expressed as a period in years or hours of engine operation, whichever comes first.

(1) The minimum useful life values are as follows, except as specified by paragraph (e)(2) or (3) of this section:

(i) 10 years or 1,000 hours of operation for recreational Category 1 engines

(iii) 7 years or 5,000 hours of operation for commercial engines at or above 19 kW and below 37kW.

(iv) 10 years or 10,000 hours of operation for commercial Category 1 engines at or above 37 kW.

(v) 10 years or 20,000 hours of operation for Category 2 engines.

(2) Specify a longer useful life in hours for an engine family under either of two conditions:

(i) If you design, advertise, or market your engine to operate longer than the minimum useful life (your recommended hours until rebuild indicates a longer design life).

(ii) If your basic mechanical warranty is longer than the minimum useful life.

(3) You may request in your application for certification that we approve a shorter useful life for an engine family. We may approve a shorter useful life, in hours of engine operation but not in years, if we determine that these engines will rarely operate longer than the shorter useful life. If engines identical to those in the engine family have already been produced and are in use, your demonstration must include documentation from such in-use engines. In other cases, your demonstration must include an engineering analysis of information equivalent to such in-use data, such as data from research engines or similar engine models that are already in production. Your demonstration must also include any overhaul interval that you recommend, any mechanical warranty that you offer for the engine or its components, and any relevant customer design specifications. Your demonstration may include any other relevant information. The useful life value may not be shorter than any of the following:

(i) 1,000 hours of operation.

(ii) Your recommended overhaul interval.

(iii) Your mechanical warranty for the engine.

(f) Applicability for testing. The duty-cycle emission standards in this subpart apply to all testing performed according to the procedures in § 1042.505, including certification, production-line, and in-use testing. The not-to-exceed standards apply for all testing performed according to the procedures of subpart F of this part.

(1) Measure emissions using the test procedures described in subpart F of this part. Note that while no PM standards apply for Category 3 engines, PM emissions must be measured for certification testing and reported under § 1042.205. Note also that you are not required to measure PM emissions for other testing.

(2) NOX standards apply based on the engine's model year and maximum in-use engine speed as shown in the following table:

Tier 12004-2010 b17.045.0·n (−0.20)9.8Tier 22011-201514.444.0·n (−0.23)7.7Tier 32016 and later3.49.0·n (−0.20)2.0a Applicable standards are calculated from n (maximum in-use engine speed, in RPM, as specified in § 1042.140). Round the standards to one decimal place.b Tier 1 NOX standards apply as specified in 40 CFR part 94 for engines originally manufactured in model years 2004 through 2010. They are shown here only for reference.

(3) The HC standard for Tier 2 and later engines is 2.0 g/kW-hr. This standard applies as follows:

(i) Alcohol-fueled engines must comply with HC standards based on THCE emissions.

(ii) Natural gas-fueled engines must comply with HC standards based on NMHC emissions.

(iii) Diesel-fueled and all other engines not described in paragraph (a)(3)(i) or (ii) of this section must comply with HC standards based on THC emissions.

(4) The CO standard for Tier 2 and later engines is 5.0 g/kW-hr.

(b) Averaging, banking, and trading. Category 3 engines are not eligible for participation in the averaging, banking, and trading (ABT) program as described in subpart H of this part.

(c) Mode caps. Measured NOX emissions may not exceed the cap specified in this paragraph (c) for any applicable duty-cycle test modes with power greater than 10 percent maximum engine power. Calculate the mode cap by multiplying the applicable NOX standard by 1.5 and rounding to the nearest 0.1 g/kW-hr. Note that mode caps do not apply for pollutants other than NOX and do not apply for any modes of operation outside of the applicable duty cycles in § 1042.505. Category 3 engines are not subject to not-to-exceed standards.

(d) Useful life. Your engines must meet the exhaust emission standards of this section over their full useful life, expressed as a period in years or hours of engine operation, whichever comes first.

(1) The minimum useful life value is 3 years or 10,000 hours of operation.

(2) Specify a longer useful life in hours for an engine family under either of two conditions:

(i) If you design, advertise, or market your engine to operate longer than the minimum useful life (your recommended hours until rebuild indicates a longer design life).

(ii) If your basic mechanical warranty is longer than the minimum useful life.

(e) Applicability for testing. The duty-cycle emission standards in this section apply to all testing performed according to the procedures in § 1042.505, including certification, production-line, and in-use testing. See paragraph (g) of this section for standards that apply for certain other test procedures, such as some production-line testing.

(f) Domestic engines. Engines installed on vessels excluded from 40 CFR part 1043 because they operate only domestically may not be certified for use with residual fuels.

(g) Alternate installed-engine standards. NOX emissions may not exceed the standard specified in this paragraph (g) for test of engines installed on vessels when you are unable to operate the engine at the test points for the specified duty cycle, and you approximate these points consistent with the specifications of section 6 of Appendix 8 to the NOX Technical Code (incorporated by reference in § 1042.910). Calculate the alternate installed-engine standard by multiplying the applicable NOX standard by 1.1 and rounding to the nearest 0.1 g/kW-hr.

[75 FR 22997, Apr. 30, 2010]§ 1042.107Evaporative emission standards.

(a) There are no evaporative emission standards for diesel-fueled engines, or engines using other nonvolatile or nonliquid fuels (for example, natural gas).

(b) If an engine uses a volatile liquid fuel, such as methanol, the engine's fuel system and the vessel in which the engine is installed must meet the evaporative emission requirements of 40 CFR part 1045 that apply with respect to spark-ignition engines. Manufacturers subject to evaporative emission standards must meet the requirements of 40 CFR 1045.112 as described in 40 CFR part 1060 and do all the following things in the application for certification:

(1) Describe how evaporative emissions are controlled.

(2) Present test data to show that fuel systems and vessels meet the evaporative emission standards we specify in this section if you do not use design-based certification under 40 CFR 1060.240. Show these figures before and after applying deterioration factors, where applicable.

(a) Engines equipped with SCR systems using a reductant other than the engine's fuel must meet the following requirements:

(1) The diagnostic system must monitor reductant quality and tank levels and alert operators to the need to refill the reductant tank before it is empty, or to replace the reductant if it does not meet your concentration specifications. Unless we approve other alerts, use a malfunction-indicator light (MIL) and an audible alarm. You do not need to separately monitor reductant quality if you include an exhaust NOX sensor (or other sensor) that allows you to determine inadequate reductant quality. However, tank level must be monitored in all cases.

(2) The onboard computer log must record in nonvolatile computer memory all incidents of engine operation with inadequate reductant injection or reductant quality. Use good engineering judgment to ensure that the operator can readily access the information to submit the report required by § 1042.660. For example, you may meet this requirement by documenting the incident in a text file that can be downloaded or printed by the operator.

(3) SCR systems must also conform to the provisions of paragraph (d) of this section if they are equipped with on-off controls as allowed under § 1042.115(g).

(b) If you determine your emission controls have failure modes that may reasonably be expected to affect safety, equip the engines with diagnostic features that will alert the operator to such failures. Use good engineering judgment to alert the operator before the failure occurs.

(c) You may equip your engine with other diagnostic features. If you do, they must be designed to allow us to read and interpret the codes. Note that §§ 1042.115 and 1042.205 require that you provide us any information needed to read, record, and interpret all the information broadcast by an engine's onboard computers and electronic control units.

(d) For Category 3 engines equipped with on-off NOX controls (as allowed by § 1042.115(g)), you must also equip your engine to continuously monitor NOX concentrations in the exhaust. See § 1042.650 to determine if this requirement applies for a given Category 1 or Category 2 engine. Use good engineering judgment to alert operators if measured NOX concentrations indicate malfunctioning emission controls. Record any such operation in nonvolatile computer memory. You are not required to monitor NOX concentrations during operation for which the emission controls may be disabled under § 1042.115(g). For the purpose of this paragraph (d), “malfunctioning emission controls” means any condition in which the measured NOX concentration exceeds the highest value expected when the engine is in compliance with the installed engine standard of § 1042.104(g). Use good engineering judgment to determine these expected values during production-line testing of the engine using linear interpolation between test points and accounting for the degree to which the cycle-weighted emissions of the engine are below the standard. You may also use additional intermediate test points measured during the production-line test. Note that the provisions of paragraph (a) of this section also apply for SCR systems covered by this paragraph (d). For engines subject to both the provisions of paragraph (a) of this section and this paragraph (d), use good engineering judgment to integrate diagnostic features to comply with both paragraphs.

Engines that are required to comply with the emission standards of this part must meet the following requirements:

(a) Crankcase emissions. Crankcase emissions may not be discharged directly into the ambient atmosphere from any engine throughout its useful life, except as follows:

(1) Engines may discharge crankcase emissions to the ambient atmosphere if the emissions are added to the exhaust emissions (either physically or mathematically) during all emission testing. If you take advantage of this exception, you must do both of the following things:

(i) Manufacture the engines so that all crankcase emissions can be routed into the applicable sampling systems specified in 40 CFR part 1065.

(2) For purposes of this paragraph (a), crankcase emissions that are routed to the exhaust upstream of exhaust aftertreatment during all operation are not considered to be discharged directly into the ambient atmosphere.

(b) Torque broadcasting. Electronically controlled engines must broadcast their speed and output shaft torque (in newton-meters). Engines may alternatively broadcast a surrogate value for determining torque. Engines must broadcast engine parameters such that they can be read with a remote device, or broadcast them directly to their controller area networks. This information is necessary for testing engines in the field (see § 1042.515).

(c) EPA access to broadcast information. If we request it, you must provide us any hardware or tools we would need to readily read, interpret, and record all information broadcast by an engine's on-board computers and electronic control modules. If you broadcast a surrogate parameter for torque values, you must provide us what we need to convert these into torque units. We will not ask for hardware or tools if they are readily available commercially.

(d) Adjustable parameters. An operating parameter is not considered adjustable if you permanently seal it or if it is not normally accessible using ordinary tools. The following provisions apply for adjustable parameters:

(1) Category 1 engines that have adjustable parameters must meet all the requirements of this part for any adjustment in the physically adjustable range. We may require that you set adjustable parameters to any specification within the adjustable range during any testing, including certification testing, selective enforcement auditing, or in-use testing.

(2) Category 2 and Category 3 engines that have adjustable parameters must meet all the requirements of this part for any adjustment in the specified adjustable range. You must specify in your application for certification the adjustable range of each adjustable parameter on a new engine to—

(i) Ensure that safe engine operating characteristics are available within that range, as required by section 202(a)(4) of the Clean Air Act (42 U.S.C. 7521(a)(4)), taking into consideration the production tolerances.

(ii) Limit the physical range of adjustability to the maximum extent practicable to the range that is necessary for proper operation of the engine.

(e) Prohibited controls. You may not design your engines with emission-control devices, systems, or elements of design that cause or contribute to an unreasonable risk to public health, welfare, or safety while operating. For example, this would apply if the engine emits a noxious or toxic substance it would otherwise not emit, that contributes to such an unreasonable risk.

(f) Defeat devices. You may not equip your engines with a defeat device. A defeat device is an auxiliary emission control device that reduces the effectiveness of emission controls under conditions that the engine may reasonably be expected to encounter during normal operation and use. (Note that this means emission control for operation outside of and between the official test modes is generally expected to be similar to emission control demonstrated at the test modes.) This does not apply to auxiliary emission control devices you identify in your application for certification if any of the following is true:

(1) The conditions of concern were substantially included in the applicable duty-cycle test procedures described in subpart F of this part (the portion during which emissions are measured).

(2) You show your design is necessary to prevent engine (or vessel) damage or accidents.

(3) The reduced effectiveness applies only to starting the engine.

(4) The engine is a Category 3 engine and the AECD conforms to the requirements of paragraph (g) of this section. See § 1042.650 to determine if this allowance applies for a given Category 1 or Category 2 engine.

(g) On-off controls for Category 3 engines. Manufacturers may equip Category 3 engines with features that disable Tier 3 NOX emission controls subject to the provisions of this paragraph (g). See § 1042.650 to determine if this allowance applies for a given Category 1 or Category 2 engine. Where this paragraph (g) applies for a Category 1 or Category 2 engine, read “Tier 2” to mean “Tier 3” and read “Tier 3” to mean “Tier 4”.

(1) Features that disable Tier 3 emission controls are considered to be AECDs whether or not they meet the definition of an AECD. For example, manually operated on-off features are AECDs under this paragraph (g). The features must be identified in your application for certification as AECDs. For purposes of this paragraph (g), the term “features that disable Tier 3 emission controls” includes (but is not limited to) any combination of the following that cause the engine's emissions to exceed any Tier 3 emission standard:

(i) Bypassing of exhaust aftertreatment.

(ii) Reducing or eliminating flow of reductant to an SCR system.

(iii) Modulating engine calibration in a manner that increases engine-out emissions of a regulated pollutant.

(2) You must demonstrate that the AECD will not disable emission controls while operating in areas where emissions could reasonably be expected to adversely affect U.S. air quality. If an ECA has been established for U.S. waters, this means you must demonstrate that the AECD will not disable emission control while operating in waters within the ECA or any ECA associated area. (Note: See the regulations in 40 CFR part 1043 for requirements related to operation in ECAs, including foreign ECAs.) Compliance with this paragraph will generally require that the AECD operation be based on Global Positioning System (GPS) inputs. We may consider any relevant information to determine whether your AECD conforms to this paragraph (g).

(3) The onboard computer log must record in nonvolatile computer memory all incidents of engine operation with the Tier 3 emission controls disabled.

(4) The engine must comply fully with the Tier 2 standards when the Tier 3 emission controls are disabled.

(a) General requirements. You must warrant to the ultimate purchaser and each subsequent purchaser that the new engine, including all parts of its emission control system, meets two conditions:

(1) It is designed, built, and equipped so it conforms at the time of sale to the ultimate purchaser with the requirements of this part.

(2) It is free from defects in materials and workmanship that may keep it from meeting these requirements.

(b) Warranty period. Your emission-related warranty must be valid for at least as long as the minimum warranty periods listed in this paragraph (b) in hours of operation and years, whichever comes first. You may offer an emission-related warranty more generous than we require. The emission-related warranty for the engine may not be shorter than any published warranty you offer without charge for the engine. Similarly, the emission-related warranty for any component may not be shorter than any published warranty you offer without charge for that component. If an engine has no hour meter, we base the warranty periods in this paragraph (b) only on the engine's age (in years).

The warranty period begins when the engine is placed into service. The following minimum warranty periods apply:

(1) For Category 1 and Category 2 engines, your emission-related warranty must be valid for at least 50 percent of the engine's useful life in hours of operation or a number of years equal to at least 50 percent of the useful life in years, whichever comes first.

(2) For Category 3 engines, your emission-related warranty must be valid throughout the engine's full useful life as specified in § 1042.104(d).

(c) Components covered. The emission-related warranty covers all components whose failure would increase an engine's emissions of any regulated pollutant, including components listed in 40 CFR part 1068, Appendix I, and components from any other system you develop to control emissions. The emission-related warranty for freshly manufactured marine engines covers these components even if another company produces the component. Your emission-related warranty does not need to cover components whose failure would not increase an engine's emissions of any regulated pollutant. For remanufactured engines, your emission-related warranty is required to cover only those parts that you supply or those parts for which you specify allowable part manufacturers. It does not need to cover used parts that are not replaced during the remanufacture.

(d) Limited applicability. You may deny warranty claims under this section if the operator caused the problem through improper maintenance or use, as described in 40 CFR 1068.115.

(e) Owners manual. Describe in the owners manual the emission-related warranty provisions from this section that apply to the engine.

Give the ultimate purchaser of each new engine written instructions for properly maintaining and using the engine, including the emission control system, as described in this section. The maintenance instructions also apply to service accumulation on your emission-data engines as described in § 1042.245 and in 40 CFR part 1065. The restrictions specified in paragraphs (a) through (e) of this section related to allowable maintenance apply only to Category 1 and Category 2 engines. Manufacturers may specify any maintenance for Category 3 engines.

(a) Critical emission-related maintenance. Critical emission-related maintenance includes any adjustment, cleaning, repair, or replacement of critical emission-related components. This may also include additional emission-related maintenance that you determine is critical if we approve it in advance. You may schedule critical emission-related maintenance on these components if you meet the following conditions:

(1) You demonstrate that the maintenance is reasonably likely to be done at the recommended intervals on in-use engines. We will accept scheduled maintenance as reasonably likely to occur if you satisfy any of the following conditions:

(i) You present data showing that any lack of maintenance that increases emissions also unacceptably degrades the engine's performance.

(ii) You present survey data showing that at least 80 percent of engines in the field get the maintenance you specify at the recommended intervals.

(iii) You provide the maintenance free of charge and clearly say so in your maintenance instructions.

(iv) You otherwise show us that the maintenance is reasonably likely to be done at the recommended intervals.

(2) For engines below 130 kW, you may not schedule critical emission-related maintenance more frequently than the following minimum intervals, except as specified in paragraphs (a)(4), (b), and (c) of this section:

(ii) For the following components, including associated sensors and actuators, the minimum interval is 3,000 hours: Fuel injectors, turbochargers, catalytic converters, electronic control units, particulate traps, trap oxidizers, components related to particulate traps and trap oxidizers, EGR systems (including related components, but excluding filters and coolers), and other add-on components. For particulate traps, trap oxidizers, and components related to either of these, maintenance is limited to cleaning and repair only.

(3) For Category 1 and Category 2 engines at or above 130 kW, you may not schedule critical emission-related maintenance more frequently than the following minimum intervals, except as specified in paragraphs (a)(4), (b), and (c) of this section:

(ii) For the following components, including associated sensors and actuators, the minimum interval is 4500 hours: Fuel injectors, turbochargers, catalytic converters, electronic control units, particulate traps, trap oxidizers, components related to particulate traps and trap oxidizers, EGR systems (including related components, but excluding filters and coolers), and other add-on components. For particulate traps, trap oxidizers, and components related to either of these, maintenance is limited to cleaning and repair only.

(4) We may approve shorter maintenance intervals than those listed in paragraph (a)(3) of this section where technologically necessary.

(5) If your engine family has an alternate useful life under § 1042.101(e) that is shorter than the period specified in paragraph (a)(2) or (a)(3) of this section, you may not schedule critical emission-related maintenance more frequently than the alternate useful life, except as specified in paragraph (c) of this section.

(b) Recommended additional maintenance. You may recommend any additional amount of maintenance on the components listed in paragraph (a) of this section, as long as you state clearly that these maintenance steps are not necessary to keep the emission-related warranty valid. If operators do the maintenance specified in paragraph (a) of this section, but not the recommended additional maintenance, this does not allow you to disqualify those engines from in-use testing or deny a warranty claim. Do not take these maintenance steps during service accumulation on your emission-data engines.

(c) Special maintenance. You may specify more frequent maintenance to address problems related to special situations, such as atypical engine operation. You must clearly state that this additional maintenance is associated with the special situation you are addressing.

(d) Noncritical emission-related maintenance. Subject to the provisions of this paragraph (d), you may schedule any amount of emission-related inspection or maintenance that is not covered by paragraph (a) of this section (that is, maintenance that is neither explicitly identified as critical emission-related maintenance, nor that we approve as critical emission-related maintenance). Noncritical emission-related maintenance generally includes maintenance on the components we specify in 40 CFR part 1068, Appendix I that is not covered in paragraph (a) of this section. You must state in the owners manual that these steps are not necessary to keep the emission-related warranty valid. If operators fail to do this maintenance, this does not allow you to disqualify those engines from in-use testing or deny a warranty claim. Do not take these inspection or maintenance steps during service accumulation on your emission-data engines.

(e) Maintenance that is not emission-related. For maintenance unrelated to emission controls, you may schedule any amount of inspection or maintenance. You may also take these inspection or maintenance steps during service accumulation on your emission-data engines, as long as they are reasonable and technologically necessary. This might include adding engine oil, changing air, fuel, or oil filters, servicing engine-cooling systems, and adjusting idle speed, governor, engine bolt torque, valve lash, or injector lash. You may perform this nonemission-related maintenance on emission-data engines at the least frequent intervals that you recommend to the ultimate purchaser (but not intervals recommended for severe service).

(f) Source of parts and repairs. State clearly on the first page of your written maintenance instructions that a repair shop or person of the owner's choosing may maintain, replace, or repair emission control devices and systems. Your instructions may not require components or service identified by brand, trade, or corporate name. Also, do not directly or indirectly condition your warranty on a requirement that the engine be serviced by your franchised dealers or any other service establishments with which you have a commercial relationship. You may disregard the requirements in this paragraph (f) if you do one of two things:

(1) Provide a component or service without charge under the purchase agreement.

(2) Get us to waive this prohibition in the public's interest by convincing us the engine will work properly only with the identified component or service.

(g) Payment for scheduled maintenance. Owners are responsible for properly maintaining their engines. This generally includes paying for scheduled maintenance. However, manufacturers must pay for scheduled maintenance during the useful life if it meets all the following criteria:

(1) Each affected component was not in general use on similar engines before the applicable dates shown in paragraph (6) of the definition of “new marine engine” in § 1042.901.

(2) The primary function of each affected component is to reduce emissions.

(3) The cost of the scheduled maintenance is more than 2 percent of the price of the engine.

(4) Failure to perform the maintenance would not cause clear problems that would significantly degrade the engine's performance.

(a) If you sell an engine for someone else to install in a vessel, give the engine installer instructions for installing it consistent with the requirements of this part. Include all information necessary to ensure that an engine will be installed in its certified configuration.

(2) State: “Failing to follow these instructions when installing a certified engine in a vessel violates federal law (40 CFR 1068.105(b)), subject to fines or other penalties as described in the Clean Air Act.”.

(3) Describe the instructions needed to properly install the exhaust system and any other components. Include instructions consistent with the requirements of § 1042.205(u).

(4) Describe any necessary steps for installing the diagnostic system described in § 1042.110.

(5) Describe any limits on the range of applications needed to ensure that the engine operates consistently with your application for certification. For example, if your engines are certified only for constant-speed operation, tell vessel manufacturers not to install the engines in variable-speed applications or modify the governor.

(6) Describe any other instructions to make sure the installed engine will operate according to design specifications in your application for certification. This may include, for example, instructions for installing aftertreatment devices when installing the engines.

(7) State: “If you install the engine in a way that makes the engine's emission control information label hard to read during normal engine maintenance, you must place a duplicate label on the vessel, as described in 40 CFR 1068.105.”.

(c) You do not need installation instructions for engines you install in your own vessels.

(d) Provide instructions in writing or in an equivalent format. For example, you may post instructions on a publicly available Web site for downloading or printing. If you do not provide the instructions in writing, explain in your application for certification how you will ensure that each installer is informed of the installation requirements.

§ 1042.135Labeling.

(a) Assign each engine a unique identification number and permanently affix, engrave, or stamp it on the engine in a legible way.

(b) At the time of manufacture, affix a permanent and legible label identifying each engine. The label must be—

(1) Attached in one piece so it is not removable without being destroyed or defaced.

(2) Secured to a part of the engine needed for normal operation and not normally requiring replacement.

(3) Durable and readable for the engine's entire life.

(4) Written in English.

(c) The label must—

(1) Include the heading “EMISSION CONTROL INFORMATION”.

(2) Include your full corporate name and trademark. You may identify another company and use its trademark instead of yours if you comply with the provisions of § 1042.640.

(3) Include EPA's standardized designation for the engine family (and subfamily, where applicable).

(4) Identify all the emission standards that apply to the engine (or FELs, if applicable). If you do not declare an FEL under subpart H of this part, you may alternatively state the engine's category, displacement (in liters or L/cyl), maximum engine power (in kW), and power density (in kW/L) as needed to determine the emission standards for the engine family. You may specify displacement, maximum engine power, or power density as a range consistent with the ranges listed in § 1042.101. See § 1042.140 for descriptions of how to specify per-cylinder displacement, maximum engine power, and power density.

(5) State the date of manufacture [DAY (optional), MONTH, and YEAR]; however, you may omit this from the label if you stamp, engrave, or otherwise permanently identify it elsewhere on the engine, in which case you must also describe in your application for certification where you will identify the date on the engine.

(6) Identify the application(s) for which the engine family is certified (such as constant-speed auxiliary, variable-speed propulsion engines used with fixed-pitch propellers, etc.). If the engine is certified as a recreational engine, state: “INSTALLING THIS RECREATIONAL ENGINE IN A COMMERCIAL VESSEL OR USING THE VESSEL FOR COMMERCIAL PURPOSES MAY VIOLATE FEDERAL LAW SUBJECT TO CIVIL PENALTY (40 CFR 1042.601).”.

(8) State the useful life for your engine family if the applicable useful life is based on the provisions of § 1042.101(e)(2) or (3), or § 1042.104(d)(2).

(9) Identify the emission control system. Use terms and abbreviations as described in 40 CFR 1068.45. You may omit this information from the label if there is not enough room for it and you put it in the owners manual instead.

(11) For a Category 1 or Category 2 engine that can be modified to operate on residual fuel, but has not been certified to meet the standards on such a fuel, include the statement: “THIS ENGINE IS CERTIFIED FOR OPERATION ONLY WITH DIESEL FUEL. MODIFYING THE ENGINE TO OPERATE ON RESIDUAL OR INTERMEDIATE FUEL MAY BE A VIOLATION OF FEDERAL LAW SUBJECT TO CIVIL PENALTIES.”

(12) For an engine equipped with on-off emissions controls as allowed by § 1042.115, include the statement: “THIS ENGINE IS